Inaugural Session

Ms. Manjira Khurana

Welcome to the First National Seminar on Electoral Reforms organised by the Foundation for Advanced Management of Elections. We have a full day’s deliberations and it is our intent that these deliberations don’t remain in paper but deliberations should result in concrete actions that would reach the grassroots level, leading to India having a more vibrant democracy. I would like to invite Shri J M Lyngdoh, the chairperson of FAME, former CEC and renowned for all the good work he has done in the Election Commission, including the conduct of the most notable free and fair elections in Jammu and Kashmir, to kindly take the stage. I also invite Justice J S Verma, Former Chief Justice of India, on stage. Justice J S Verma is well known for all the landmark initiatives that he took including the declaration of assets and of course, all noted legal luminaries talk about his judgements. But for us, the common man, he is truly a trailblazer. Dr S Y Quraishi, Election Commissioner of India; need one say more? I now invite Mr. Lyngdoh to deliver the welcome address.

Welcome Address by Mr. J M Lyngdoh, Chairman, FAME

Mr. Quraishi, Justice Verma, distinguished panellists, members of the media, bar, civil society, ladies and gentlemen, I have the pleasure of welcoming the inaugural speaker Dr Y S Quraishi, Election Commissioner of India and a distinguished civil servant from whom we have every reason to expect a memorable career as CEC. I have equal pleasure in welcoming the former Chief Justice of India and keynote speaker, Justice J S Verma; no one is more apt than he for the occasion, for having been not only one of the outstanding justices of the Supreme Court, but also for having decided some landmark cases on electoral issues. Some of the other non-electoral judgements associated with him are Vishaka versus the State of Rajasthan where the Supreme Court held sexual harassment in the workplaces to be unconstitutional.

The Nilabati Behra versus the State of Orissa case was another instance where the Supreme Court held that the families of the persons killed in police custody were entitled to legal redress and compensation should be awarded to the family of such persons.

The Vineet Narain Versus The Union of India where the court began monitoring hawala scandal in the light of inaction by the police and investigating authority. Under directions of the court, the Central Vigilance Commission was given independent legal status in order to make it secure and to protect it from political interference.

In the S. R. Bommai versus Union of India, the Supreme Court examined the power of the President to enforce emergency under the constitution and held that judicial review of an emergency declaration of the government was possible and that judicial review itself was instituted as the basic structure of the constitution.

In the Gian Kaur versus the State of Punjab case, the Supreme Court held that the right to life protects the right to live with dignity, including dignified procedure of that but that does not comprehend an extinction of life by unnatural means.

When he was not on the constitutional bench deciding session cases, importantly, he was the Chief Justice of Madhya Pradesh when he decided that disqualification and conviction arise from the date of conviction by the trial court.

This does not end what we have to say about Justice Verma, because when he was the Chief Justice of the Supreme Court, that court adopted unanimously a code of conduct for the Supreme Court and High Court judges called a Restatement of Values of Judicial Laws; a resolution for each to declare his or her assets.

I am sure there is much more to Justice Verma, but he would himself be embarrassed if I went on.

I’d like to say few words about the Foundation for Advanced Management of Elections (FAME). It is a non-profit organisation, consisting largely of election commission veterans and its functions are self-explanatory. On request, it has been conducting elections within the Youth Congress in Punjab, Gujarat, Pondicherry and Tamil Nadu, which is under process. The Foundation would be pleased to be of use to the political parties, particularly as the Election Commission and the Supreme Court have been so energetically pursuing the parties’ internal democratisation. In a universal context, with respect to democracy in which there are more funds than electoral professionals able to handle the special problems of non-Western countries, FAME has the biggest repository of electoral experts in the world; it inevitably has a major international dimension. Election Commissioners from the Commonwealth, former Chief Election Commissioners from India and academia meet annually in Cambridge to ensure better elections, not only within the countries meeting but in other strategic countries across the globe.

Shri T S Krishnamurthy, Ex-CEC and Senior Member of FAME went to Palestine and was of immense assistance to the Palestinian authorities, who without even being a country and hemmed in by Israel and subjected to every conceivable disability, were able to hold an incredible election. Thank you very much.

Ms. Manjira Khurana

I now request the three of you to light the inaugural lamp to then begin the session. We would like to declare the session open and request Dr S Y Quraishi, Election Commissioner of India for his inaugural address.

Inaugural address by Dr S Y Quraishi, Election Commissioner of India

Honourable Justice Verma, Mr. Lyngdoh, Mr. Gopalaswami, Mr. Krishnamurthy and friends and colleagues, it almost looks like a meeting of the Election Commission of India, new and old faces, one feels perfectly at home. The subject of this conference Electoral Reforms is extremely important and very close to our hearts. As you know, there are various sources of reforms in the electoral process partly through constitutional amendments, partly by amendments of law; there are lots of administrative orders taken by the Election Commission suo motu and very importantly, judicial pronouncements. The EC, for its part, wherever it does not have to depend on anybody else, has been very proactive and take action very quickly as soon a bright idea is suggested to us. And we take action if we see merit in it. One most recent example is when the request came up about eunuchs and trans-gender individuals having difficulty in voting. When they wrote their gender as male, it got rejected and when they wrote it as female, it got rejected by the officers. If they left it blank, their form was not accepted as it was taken as incomplete. Therefore, they could not be on the electoral roll, and if they were not on the electoral roll, they could not even contest the elections. This was a grave injustice to pretty sizeable section and we are told that their number is about one million. When this problem came to our notice, I am very happy to say that it did not take us 30 seconds to accept this idea. We declared that they would now be classified as the ‘other’ gender and would go on. The media has been asking us how we did it; what about the government, what about its implications on the census, but this is not our problem. If they feel inspired by this quick action and positive suggestion, let them make the move but for us, our philosophy is every citizen of India who is over eighteen years of age, and eligible, must have a right to vote. We must remove whatever procedural problem comes in the way come what may, and that is how we have been doing our job.

When it comes to reforms which have to be implemented by the government, it is here we find ourselves a little frustrated. We have been writing to the government from time to time. This is a booklet which was published in Mr. Krishnamurthy’s time in 2004 on electoral reforms. Even in 2009, the booklet is still valid. There are reform proposals that are still pending. You can accuse the government of anything but not of inconsistency; they have been very consistent in just sitting over it. I remember last year, a TV channel was interviewing me and the person who was a very senior editor of that channel asked me about the reforms. When I showed him the book, he made a very caustic and sarcastic remark, saying that they had been seeing that booklet for years and suggested that I should get it framed and show it to my grandchildren. Maybe, his was too biting a comment, but that is the state of affairs. I think in such a situation, there is a need to create pressure of public opinion and civil society organisations like this one can play a very important role; ADR has already been very active in this regard and have also contributed to a lot of improvement in the system. The media have a very important role and they have also been our allies. Normally, they are watchdogs for everybody else but for us, we have found that they have been a great ally; they reach where our eyes could not reach and through their eyes we are able to see lots of malpractices and we take corrective action.

Academics, political scientists and intellectuals also have a very important role to play. As for the role of judiciary, I would like to take this opportunity to make a mention, at the risk of embarrassing Justice Verma. I think although the constitution gave us the maximum power, real power that has come to us is through the Supreme Court pronouncement. But for the Supreme Court, we would have been devoured by the politicians for breakfast, lunch and dinner, to use a rather well-known phrase popularised by former CEC Mr. T N Seshan. They have ferociously stood for our independence and have given us the power that the constitution probably had perceived, but had not really articulated. To capitulate some of the powers that we got through the court, as early as 1952 in Ponnuswamy case, the apex court said that courts shall not interfere during this process of elections. Because of the pronouncement of the Supreme Court, the temptation which the courts down the line have to interfere in the process have been eschewed; even when they made the mistake of getting into the territory, it has not taken more than a minute in the Supreme Court; the Supreme Court has upturned it and has said a firm no to interference in the election process.

In the Mohinder Singh Gill case of 1978, the Supreme Court’s pronouncement was that the Election Commission can act in a vacuous area not covered by law in its own inherent powers of constitutional authority created by Article 324.

In a writ petition filed by the Election Commission, the court pronounced that we would have the power to ask the Home Ministry to requisition deployment of Central Police Forces which has been happening. The same judgment holds that we can ask any number of observers as we know the government used to resist. In one company, they used to resist giving, but now we can ask for any number and they have no option but to make those forces available and the same is for the observers.

The most crucial power has been power of disciplinary control over officers and staff. The Election Commission of India is a very small organisation; from the Chief Election Commission to our driver, there are just about 300 people. That is our permanent staff. When we mention this, especially to foreign audience, they are amazed and surprised how it could be like this. In the state, we have 10-12 people. But for the general elections and in the last elections, we had deployed 1.1 million people. These people are called upon to do the election duty; they come on deputation. Once on deputation, they cannot be touched.

The judgment in the SLP filed by the Union of India about the model code is again a great example, unparalleled anywhere in legal history, where the model conduct is not a law but the adherence to and compliance with the model code is lot more than under the law. Under the model code, we have given notice even to senior-most politicians that their reply should reach us by 5 pm the next day. They are so scared that they reply before 4 pm the next day; that is the level of compliance despite the fact that there is no law. However, through a judicial pronouncement, the Supreme Court again lent us a helping hand when they said that the model code would become effective from the date the elections are announced and it should be followed strictly. The Supreme Court pronouncement also gave us the backing of law. That is how, through this method, we have come to use an extremely potent tool of election administration. To the credit of the politicians, I must say that they have been very respectful of the model code; in fact, there was a voluntary solution of the political parties themselves and which has now almost been fortified at least in broader parameters. Thus, a great institution has been created.

Another landmark judgement of the Supreme Court was in a case filed by an NGO when the Commission has been given the powers to regulate opinion polls and exit polls. Now it is common knowledge that opinion polls and exit polls can be manipulated. It is happening all the time; there is money power operating behind these polls. Although the case is still pending with the Supreme Court for final judgment, by way of interim measures before the general elections, the Supreme Court asked us to do whatever we liked to do and to be sure, we have decided to do so. We have reiterated our ten-year old instructions, which had been withdrawn at that time that such exercises have to be banned and I am happy that the media too – though rather grudgingly – complied with this order. We are hopeful once the Supreme Court gives its final order, this issue would be settled once and for all.

In another landmark judgement, the Association for Democratic Reforms case, the Commission has been empowered to call for information from the candidates as regards the criminal antecedents, assets and liabilities and educational qualifications. This is a great step forward, highlighting a great ill that is still haunting the election process. People with criminal backgrounds enter parliament and the state legislatures. As a serving incumbent as the Election Commissioner, I find it very embarrassing – and my senior colleagues will bear me out – it is very embarrassing when foreign correspondents and experts question us on the kind of democracy we have. We have so many people with criminal records in the parliament; what is the kind of democracy we profess to have? It does embarrass us no end.

Another judgement was in the case of common cause empowering the Commission to call for the statement of the receipts and expenditure of the political parties during the election process. This is something on which the Supreme Court has empowered us but the ball is in our court; we do realise that we have not acted enough on this because we did not have the machinery and the wherewithal; we have now decided to set up a new division with officers from the income tax service who will look after the expenditure monitoring division and look into all the funding issues.

Finally, in T N Seshan’s case, equal power to the CEC and ECs is a very important step, although we feel that logical next step should have been the constitutional amendment which is still pending, to give it the shape probably required.

Sir, I would take this opportunity to point out the basic flaw in the present system. The Election Commission may be autonomous, but we cannot have a situation wherein one of the three bodies can be autonomous and the other two can be subjected to pressure, especially when the other two, following your judgment, have equal powers. Probably my interpretation is that the problem arose when the framers of the constitution were debating this subject, they may have visualised that the elections would be held only once in five years and for five years, there would be no work to do. At that time they laid down that the Commission would consist of only one man and he would be designated as CEC. Even there, if one goes through the debate, the question was whether this official too should be a full-time or part-time appointee. Then they stated that at least there should be one full-time man as a matter of charity and precaution, just to keep the function of the commission going uninterrupted.

Now the second clause was that anybody who is taken on as a temporary or regional commissioner and appointed cannot be removed except on the recommendations of the CEC. Now these two commissioners should be equated with the commission and not with the eleven million staff that we take on deputation. Once on deputation, they cannot be sent back. This confusion regarding whether these two have to be bracketed with the eleven million people that we hire for the elections or with the Election Commission, which was personified by one man earlier, and by three now, is a blatant flaw that needs to be corrected before long, before any unfortunate situation develops in future.

I would not take too much of time except to mention two or three broadened reforms that are still pending with the government for legislation. One is a totaliser; we have been reforming our system from time to time and we feel – as everybody knows – that every problem has a solution. But we have found that every solution also creates its own problems. Today, for instance, we have moved from marking of ballots to electronic voting machines. The earlier practice of mixing of ballot papers was considered essential to guard the anonymity of any constituency, say, a town or village, because if that particular place had voted against the party in power, it would be subject to punishment for the next five years. Our apprehension is not without basis; such things happen all the time. Places voting against the dispensation in power are routinely subject to harassment, because now they are clearly identified. In the days when the ballot papers used to be mixed from ten different boxes, they could not identify which place had voted against or in favour of the government.

A few weeks back, there was a news item from one state that had recently gone to the polls, where the chief minister announced that the villagers who had voted for him would be rewarded an extra grant of Rs.5 lakhs. If such rewards and punishments are based on the voting pattern of that village, we indeed have a serious problem and this issue needs to be handled.

I would have liked to mention the number of EPICS; the epic was introduction which did not require any legislation and we have now about 590 million epics, which works out to 82% of the country and possibly 82% of the voters; the total number of voters at present are 714 million.

One of the reasons in spite of about 8-10 years of effort for only 82% of the country being covered is that people don’t come forward to get themselves photographed or even registered; we are after them. There is no other organisation of the government that goes to people’s doorstep delivering a service. Have you ever seen a ration card, driving license or your PAN card being delivered at your house? Nothing comes to your doorstep. It is only the Election Commission which does so, repeatedly giving you the forms, asking you to get photographed at your doorstep, and yet people don’t come forward. We do feel that there is great scope for voter awareness and I am happy to mention that I have set up another division called IEC (Information, education and communication), which will address these issues. Voter education was a concept mentioned in the Election Commission in the 90s when some section was created but somehow over a period of time we could not give the attention it deserved.

The expenditure ceiling on political parties also has set in issue which I hope during the course of the day, they would be discussed.

The nation’s two major political parties in 2003 agreed to an amendment to the RPI Act, whereby political parties are now allowed to receive donations and tax is exempted; both the donor and the recipient are exempted from the tax but are supposed to file returns with us; if they don’t there is no penal clause; it is only for them to avail of tax benefit. But we find that despite six years having passed by, only 18 parties in 2007-08 filed these statements. Clearly, a lot more needs to be done.

We also find that although we have the power to register political parties, we don’t have the power to deregister them, which is indeed strange. We now have 1,000 political parties; they are increasing at the rate of 80-100 every year but we cannot deregister them. This new income tax concession is actually encouraging bogus parties to get formed because it has become a tool for money laundering. We just did a test check of three such political parties and in one case we found that they had about Rs3 crores. We wanted to see what political activity they had conducted with that money. It turned out that the entire political activity was buying jewellery. Unless that was meant for political activities vis-à-vis their wives, buying jewellery and shares in the name of a political party certainly should make us all sit up as to what kinds of things are happening.

One TV channel, CNN-IBN, on the basis of the feedback that they got from us did an in-depth story. They went to 100 such parties and it was very interesting to see the signboards of political parties but the channel couldn’t actually locate those political parties. What were we talking about? One after the other, these were the kinds of political parties that they came across. A lot needs to be done and the Election Commission has its limitations because we do not want to be pressurising the government too much. As it is, during the election days, through the model conduct we almost hung the political parties with the result we are very unpopular with them. But surely pressure can come from civil society and hopefully you would create a situation where I don’t have to frame this booklet for my grandchildren if some of these recommendations are acted upon.

I would refer to Manjira’s comments – in any intellectual activity, there is very little audience but let us not be discouraged. I would end on a Urdu couplet that can be very inspiring:

Main akela hi chala tha, janibe manjil magar,

Log saath aate gaye, aur kaarvaan banta gaya

Thank you.

Ms. Manjira Khurana

Thank you, Dr Quraishi; that’s very well put. While we certainly know and hope that you will be a torchbearer, we would also be looking with great interest and hope to your tenure. Going on to the next session, we request Justice J S Verma, former Chief Justice of India to please define the reform agenda. We are calling this session ‘Setting the Reform Agenda’ because clearly we need a roadmap for reform now. One can hardly think of a better individual than Justice Verma.

Thank you very much. It is indeed a great pleasure to be here to participate in this event. Mr. Lyngdoh, Dr. Quraishi, Mr. Krishna Murthy, Mr. Gopalaswami and our distinguished audience. There is a lot of similarity between the work the judiciary is expected to do under the constitution and that of the Election Commission.

I shall begin with something that was stated only indirectly by Dr. Quraishi out of discreetness. I shall elaborate and put it a little more bluntly as is my wont. The political will to undertake any electoral reform will never be there. Therefore, the question that civil society has to ask itself is – what really is the alternative? Another thing stated here was that for every problem, there was a solution and for every solution, problems can be created. That is the difference between a winner and a loser. A winner has a solution for every problem and a loser has a problem for every possible solution. We are all winners; I am an incurable optimist and I have great faith in civil society and in the electorate. My personal view, therefore, is that we must do all we can to improve this system. The Indian electorate even though largely illiterate, has shown that they are very wise. And whenever there has been a need, they have given an electoral verdict that reflects the true opinion of the people. Since the political will is certainly not forthcoming, what are the alternatives? According to me, the main alternative is a strong public opinion and assertion by civil society to do what is needed and coaxing every institution of governance, even in the absence of political will, to do what it can within the system as provided. Therein comes the judiciary too, because interpretation of laws is something the judiciary has to do. Since the constitution itself says the law is what the Supreme Court interprets in Article 141, I think the judiciary has a very potent role and I myself believed in that while I was there. I coaxed and goaded colleagues who are still serving, to do likewise. To what one succeeds is a different matter.

I will begin by sharing with you an experience. This would indicate that why my belief is now confirmed that political will won’t be there and therefore, civil society has to act. The judiciary has to act by interpreting these laws. After the 1971 elections, I was appointed a judge in the High Court in 1972, but I did appear in some election petitions, one of which was as the team of lawyers for the then Union Law Minister, Niti Raj Singh Chowdhry. I narrate this incident because it has confirmed my belief that politicians of any shade will do nothing. The usual allegation was of the corrupt practice of exceeding the permissible expenses. Everyone knows that not only the returned candidate, but even most of the defeated ones also spend more. Petitions are filed but nothing happens because the proof that courts will be able to accept is usually not there. The allegation against the candidate was similar. A set of witnesses, all speaking lies, appeared for the petitioner to support him against an allegation that was true. It was rebutted by another set of lawyers – not lawyers but liars – who spoke just to the contrary. After I had argued the matter, the case was closed; everyone knew that the petition would be dismissed because we would be unable to accept evidence as there was no patent evidence.

In the evening my client, the law minister came to thank me for appearing for him. He was a very elderly gentleman, my father’s age then as I was a very young man at that time. I told him that now I wanted to talk to him as a lawyer and a member of the Bar to the Union Law Minister, about the electoral laws. He wanted to know what that was. I asked him why they didn’t delete the provision from the election laws which made it a corrupt practice because it had ceased to be even a fig leaf. Everyone knew that the expenditure incurred was far more not merely by the returned candidate but by others too. Election petitions are filed because those who have lost want to justify the money they have collected and some kind of show has to be made; the time of the court is also wasted. The judge knows it is a true allegation but cannot be proved due to lack of evidence. Since the burden is on the petitioner, naturally the petition is likely to fail. All the lawyers know; everyone present in the court knows it; then why this farce? The minister became very quiet; he was a very sober and dignified man. He addressed me by my first name Jagdish; he was much older and also a lawyer from the Bar. He said that I should take it from him that, in 1971 no one thought that any other political party would come in power; this law would always be retained and would never be changed. And why would it be changed? All of us politicians are big hypocrites; we know no one believes us but we insist on repeating lies in the hope that someone might believe them. That was in 1971, we are in 2009, and have seen all parties come and go. But then, has anything really changed? Therefore, when the Common Cause matter came, I had something to do with it. My friend Kuldeep Singh was hearing it; I was not even on the bench. He is a great judge with robust common sense with a lot of fire in him. When he discussed the matter with me, I asked why couldn’t the law be interpreted in the manner when once an expenditure is proved; the presumption should be that it was either incurred by the returned candidate or with his consent, because no one spends the money for someone unless he has some interest. Thus, the burden shifts to the returned candidate to prove that it was not with his consent. The difficulty of the court is that they can’t oppose the allegation because the entire burden is on the petitioner, which would shift. And lo and behold! Section 77 would be interpreted like that. This is one instance of what the judiciary can do.

Similarly, coming to disqualification as a result of conviction, I fail to understand as an ordinary law student, how can a conviction be completely wiped out simply by a stay? You stay only the operational sentence and not the conviction unless it is wiped out by an acquittal. On the date of the scrutiny, the returning officer does not assume things; he does not know what is going to be the outcome of the appeal. Therefore in 1980, I held in V C Shukla’s case that this qualification must stand, but he was a powerful minister and somehow in the Supreme Court order was reversed, which usually happened when I was in the High Court. When I came to Supreme Court, I very often dissented. But fortunately the Supreme Court constitution bench in 2005 has upheld that view, which is of course the obvious view. It is to the credit of Mr. Lyngdoh, let me share that now. Before he became the CEC, we happened to be in a similar situation. He was talking to me about this problem. I told him that my judgement had been overruled by the Supreme Court and unless that aberration was corrected, that was the law but then that was my judgment in 1980 and he should read it. The circular which was issued by the Election Commission was a sequel to that. I am citing these instances; forgive me if I am sounding modest only to indicate what can be done. Once the courts interpret the law like that, one has to see what is the support, the main strength of the judiciary and also of the Election Commission? No politician will dare to go against public opinion because that is the only thing they are afraid of and that is also our strength. Coming to the Election Commission, I am happy and proud as a citizen at its present functioning and must acknowledge it. We have a galaxy of distinguished CECs and ECs present here; it is they who have brought that credibility and as long as the public confidence in their functioning remains, it is also the strength of judiciary. While in a way, I am happy, I’m also a little sad as the judiciary’s credibility seems to be slipping slightly but I am happy the Election Commission is continuing to hold its ground. I am sure Dr Quraishi will ensure that it continues and goes from strength to strength; I have no doubt about it. That is where public opinion matters.

I believe in what Edmond Burke said long back, “Nothing more is required for evil to succeed than for the good to do nothing.” Therefore, if those people whose opinion counts and whose words matter keep quiet and suffer injustice in silence, I think one ought to blame them more. And therefore, in a group like this; it is not merely the quantity, it is the quality which matters. It occurred to me in the early 1990s when my colleagues who had joined the civil services started retiring. I in the Supreme Court retired at 65; they started retiring at 58 or 60. I found practically every one of them in robust health with enough to contribute and wanting nothing because they had held the highest offices, say Cabinet Secretary etc. I wondered about it, as this was such a large force with so much of potential. Today if I were to say something about the judiciary, no one can question as to what I know about the judiciary. If Mr. Lyngdoh, Mr. Krishna Murthy or Gopalaswami speak about the Election Commission or what the CEC should do or not do, no one can question their knowledge and experience about it as long as they are not looking forward to something or have no past to hide. Therefore, I believe that if every top position is manned by persons who have no past life and are not looking forward to something and no one can oblige them; things would be alright. Fortunately, that tradition is being maintained except for some aberrations.

Recently, I was in Bhopal in the Administrative Academy and thereafter also in the Judicial Academy; I keep going there because the Judicial Academy has something to do in setting it up. I always encourage interaction by the participants, particularly the young people. During that interaction, a young lady participant asked what I thought about a former CEC joining a political party soon after retirement and enjoying political office in that capacity. I told her that I would be entitled to respond to that only after I have first spoken about the former Chief Justice of India, an office that I had held. I said that I was critical of that when the former Chief Justice did something similar. I can understand a President nominating you as an eminent person in a category of eminent persons, but joining a political party and getting elected on that ticket, I thought, was bad for the Chief Justice of India. I replied that the answer to her question should be obvious. I was very happy when I read sometime back --- sub Article 7 to expressly provide, my views on this aspect, the electoral or judicial reforms can automatically take place even without the politicians, if you have the top men of that kind who will go by the spirit of the constitution; that is the constitution philosophy. The judiciary is made the custodian of the rule of law. This is the bedrock of democracy.

Another basic feature of the constitution is free and fair elections, to ensure the elections of true representatives of the people. Do we really get true representatives? I doubt very much. Very often, people face a Hobson’s choice. The Election Commission is entrusted with that power. Therefore, if this is the constitution philosophy, the laws and the entire system have to be interpreted and understood by the judiciary and the Election Commission as harbouring this thing.

A mention was made about the model code of conduct. Somehow, I had something to with that too. When the model code of conduct was imposed, the Andhra Pradesh government filed a writ petition in the Supreme Court and G Ramaswamy, who was the Attorney General appeared to challenge it on the ground that this was not within the power of the Election Commission under Article 324 and sought a stay. I was presiding over that bench and I said that we were admitting that petition because it involved interpretation of the scope of Article 324. I said that I was rejecting the stay application without hearing it. Normally, I hear it before rejecting, but this I would summarily reject without hearing at which he was flabbergasted. I explained that the logic went somewhat like this. If a young man were walking on the road and an elderly person, unrelated to him, tells him that speaking lies was bad and hence he must not speak lies, not misbehave etc. He challenges the authority of the person, comes to me and says, asks whether I am the authority to tell me so; I said I was and I would decide that as a legal issue. He asked me to restrain the other gentleman from saying so till I decided, to which I would refuse. I said unless he showed me prima facie what the other gentleman was saying was wrong or immoral, I would not go ahead. I told the Attorney General that the stay was being rejected and that led ultimately to the petition being withdrawn. I am only telling you of the ways in which these things can be dealt with.

Here, I would have been happier if some leaders of the bar having come to know of it had acted to assist the court or some activist had taken cognizance of that. If this thing had not occurred to me but someone else had suggested, at least one would be sure that it is the role of the civil society. The representative form of government that we have that naturally presupposes that the government is run only by true representatives. But, do we really have true representatives? If candidates do not get more than 50% of the votes cast, how can they be our representatives? If the number of votes cast against them is more than 50%, they certainly are not our representatives. This is being spoken about by everyone is talking and I am not saying anything new. I shall elaborate on this later when I come to the specific reforms, which everyone has been talking about, but we need to know them. We have these special provisions in our constitution, but also need to look at the essence of representative form of government. In Australia, the apex court is called the High Court and not the Supreme Court. We have a bill of rights, but the Australian High Court in the early 1990s, without even a bill of right, had taken this view and said, “Implied in a representative form of government is the people’s right to know about all the candidates. Therefore, it is all the more necessary to inform them so that they can make an informed choice of their candidate; it is something which is implicit in the constitution. The question arose when the election campaign through the electronic media, on which some curbs had been placed by the Australian government, were challenged. The Australian High Court struck them down and stated in a series of cases that the electronic media is a potent source of informing the people, so that they know all what is required to be needed to make an informed choice of their true representatives. In their judgement, they said that it is implied in the representative form of government, mind you, without any specific constitutional provision, while India has a specific constitutional provision. That is why I personally think any law inconsistent with citizens’ political rights is unconstitutional. Therefore, when authorities interpret laws or understand rules, this basic principle has to be the lodestar or the guiding factor. If that is indeed so, we wouldn’t need to be unduly concerned with these reforms.

The right to contest in elections is a statutory right and hence it has to be governed by statutes. Why can’t we have a system that would provide that no candidate would be declared elected unless s/he gets 50% of votes? The “first-past-the-post” system that we have and the results it brings about do not bring about true representation. And with the other related problems, with rampant muscle power and money power, individuals who could be true representatives cannot contest elections these days. How to eliminate those who should not be there? This is one way. Along with that, I believe there should be a right of rejection too, a negative vote so that unless the positive roles are more than 50% plus (in the event of no single candidate getting even 50%), then the entire panel should be rejected and a fresh panel in which all those who have been rejected should be disqualified. This is how by the process of elimination, we will have people who would be our true representatives. Some people say that there should be a run-off between the top two. Elections, as such, are very costly. My own view has been that it would be better to have a single transferable vote as that’s also a known system but that’s a matter of detail. Irrespective of whether it is this or that candidate, we have to ensure that s/he must secure 50% votes in order to be called a true representative. That is also one way of driving out the undeserving.

As a matter of fact, soon after my retirement from the Supreme Court, I had written an article as I have been thinking of these matters all along. But I thought it better to speak publicly about it only after I demit office. That article written by me under the caption “Democracy without Choice” was published in The Indian Express of 10th March, 1998. A year later, at the first inaugural lecture at Bangalore, Hanumanthiah Memorial Lecture in March 1999, I spoke about the electoral reforms that need to be made and public opinion to be created. I am very happy to see that many of these things are being discussed; anyone who is interested probably can find it on the website or even in one of the books.

I would say one thing more about the expenditure; what is needed is authentic proof and that can be provided. When I was hearing an election petition in 1991 or 1992 in which Mr. Sharad Pawar was also named as one of the persons for corrupt practice, I think it was a petition relating to one Mr. Vikhe Patil. A galaxy of lawyers had appeared in this particular case. I thought that was a good opportunity to ventilate some views in public, which would probably have remained unmentioned. I said that in these days of advanced technology, video-graphing is very easy and being strongly public-spirited people with high credibility, why can’t people form groups during elections and go about as observers, collect that evidence in a manner that would be authentic to be made available for proof of the corrupt practice? Once an election petition is filed and this is also done, it becomes easy for the court to accept it as potent proof. If that is done, a lot of malpractices can be curbed. If one watches TV, one will be shocked to see the manner in which muscle power and money power used. But then ultimately, everyone goes scot-free. I am glad something like that has been initiated thereafter.

As for the declaration of assets, the Election Commission has done a great job insisting on that and the Supreme Court has passed orders. But I think one thing needs to be clarified to make that far more effective. I did suggest to some to do something about it but I don’t know if that has really been done. The question often asked is that a declaration has been made and everyone knows most of it. For instance, a heated debate is currently on about the declaration of assets made by judges recently. One particular instance quoted a plot of 100 square yards or something – I don’t really have an idea of all these things – but the cost mentioned was a mere Rs4 lakhs! The only sane reaction from my side, when someone asked me about this, was to ask him to give me this area of land for twice that amount, a sum of money that I can realistically afford – for once, I can have a house myself. Clearly, these declarations made are false, but they really have no effect. I made a suggestion; I don’t know if it really has been done. If it has, fine, otherwise, one can’t expect the returning officer to scrutinise their veracity. He can only see if procedures have been complied with, the truth or otherwise cannot be ascertained by him within the time available to him. Such declarations of assets should be on affidavit and then certainly later on, an enquiry can be made by some designated authorities or even public activists’ to expose their falsity. Here, I deliberately use the word falsity instead of inaccuracy because quite a few of such declarations are false and a false affidavit is a punishable offence. Why can’t that be done? I did mention this to some of the judges who talked to me later on, wherein I said that if only they had added this aspect, it would have been more transparent. My stress is on making it effective. The filing of an affidavit is alright but in many instances, it is a false affidavit. If these issues are constantly kept alive through public opinion, then a lot can happen.

Criminalisation of politics and politicisation of crime is a growing menace. What is politicisation of crime? When an offence is committed, the politicians ask who the concerned person is. If he is their shade, he has been ‘framed’; if he is our shade, the allegation is ‘proved’. That is politicisation of crime. We in the judiciary are also to be blamed because these cases never end. Except gaining some political mileage, nothing really happens.

Coming to the Tenth Schedule, when the constitutional validity of the Tenth Schedule; the Anti Defection Law was challenged, once again, as usual, I was the dissenter. Mine was the minority opinion; I thought that this law was not going to work; we had seen it was not really working the way it was intended to and I said that it should be scrapped. They were forced to make a new law taking into account its discrepancy and a majority of them thought that I was right and that is the law. Why couldn’t the law be amended for the purpose of providing that once a person defects, nothing should be available to him, not merely denying him a ministerial berth, his seat should be treated as vacated. Let such defectors fight away their elections. Much of these practices would automatically stop.

These then, are some of my thoughts, which are merely a reiteration of what I wrote in my article in 1998 and spoke in the Hanumanthiah Memorial Lecture in 1999. I think at present, in spite of all the constraint, the way the Election Commission is functioning and has functioned is really fortuitous. As the people, it is our duty to support them, not merely by keeping quiet, but by positively appreciating what they do. Thank you very much.

Session – I Criminalisation of Indian Elections.

Ms. Manjira Khurana

It is my honour to welcome amongst us Mr. Dinesh Trivedi, the Union Minister of State for Health and Family Welfare. Mr. Trivedi has been a very illustrious member of the political fraternity, and also the travel and trade fraternity to which I too belong. He has also been a civil activist for longer than one can remember. We have a very interesting panel discussion on “Criminalisation of Indian Elections.” Before we kick that off, I would like to briefly invite Shri Mr. Anil Bairwal, National Coordinator of an NGO called Indian Election Watch. They collect data and act as watchdogs for all candidates who appear for elections. Anil will share some data with us as part of ground realities before we begin our next session.

Mr. Anil Bairwal, National Coordinator of Indian Election Watch

I have been asked to share some details from National Election Watch; the analysis that we have been doing. I will share data and try not to be judgmental about what needs to be done. We have great panellists amongst us and I am sure that they would take into account the data that we are talking about. When the present Lok Sabha was elected, everyone talked about what a great Parliament had taken shape. A few details are interesting. We have some affidavits, thanks to the Election Commission; in 2004, we had problems in accessing the affidavits. But in 2009, we have access to all the affidavits of all the MPs in the Lok Sabha right now. Out of them, 162 MPs – about 30% – have one or the other criminal record. Many people ask what a criminal record is; we talk about serious and non-serious charges. We tried to look at serious criminal records which we decided would include only murder, kidnapping, dacoity and such type of cases. There are 76 MPs in Lok Sabha who have these kinds of cases, about 14% of our MPs. Comparing this with Lok Sabha 2004, we have made some improvement. In the 2004 Lok Sabha, there were 128 such MPs; yes, we have made some progress; the number of MPs with pending criminal cases is 162 which is a 27% increase in MPs with such background.

Have we made any progress in the MPs having serious criminal cases? There were 58 such cases in 2004 and now that number has gone up to 76; an increase of 31% of MPs who are charged with serious cases we talked about, like murder, attempt to murder, kidnapping etc.

Justice Verma spoke of the need to develop a positive approach. But we really had to dig very deep and try to find that positive thing; something had to come out positive. Yes, there is something positive in the current Lok Sabha. The number of representatives charged with violent crimes has gone down. There were 167 instances of IPCs that were charged on various MPs in 2004; this had come down to 136, which means that there is a 7% decrease. It means although the number of MPs with criminal backgrounds had increased, the number of crimes have gone down. In other words, in 2004, an average MP with pending criminal cases would have more than 5 cases against him, which has now come down to 3.5 cases per MP. That means an MP could have a murder case, kidnapping case and dacoity case, five such cases. Now, there may be ‘only’ murder and kidnapping, minus the dacoity.

We have looked at party-wise cases; parties make tall claims, which all of us are aware of. But the situation is the same more or less for all the parties. The BJP has 116 MPs, of which 44, i.e. 38% have one or the other criminal case against them, 19 of them serious.

The Congress has 206 MPs, of which 44 have pending criminal cases and 13 have serious criminal cases pending like murder, or attempt to murder.

The Shiv Sena – 9 out of 11; Samajwadi Party – 9 out of 23; BSP – 6 out of 21; BJD, AITC, NCP; name the party and they are there. All these details are available to anyone interested.

We have looked at states because there are states who have begun feeling that a large influx of north Indians into their states has imbalanced them. The bigger the state, the more the MPs with criminal background sent to the Lok Sabha. Number one in the list is Uttar Pradesh; out of 80 MPs, 31 have criminal backgrounds, Maharashtra has 48, they have sent tainted 26; Bihar – 18 out of 40; Andhra Pradesh, Gujarat, Tamil Nadu and Karnataka, name a state and it is on this dubious list. I shall mention only two more points. We have been telling this to all our friends in political parties and some of them who are here must take note of this.

We tried looking at the tainted constituencies, those constituencies where there were candidates who had criminal backgrounds, pending criminal cases and who were contesting. We found that 450 constituencies out of 543 had one or the other such tainted candidates who contested the polls. Was criminality a factor? Is it a winnable thing? Does it make sense to give tickets to such of candidates? I’d like to mention some of our findings.

If there was one candidate who had a criminal background and there were 150 constituencies like this, 83% of such constituencies chose a winner with a clean background. If there were 2 candidates with criminal background, only 67% were able to choose a candidate with a clean background. If we go down, if there are three, four, five or six candidates or more with criminal background who contested from one constituency, only 35% preferred a clean candidate. The voters actually do wish to choose an honest and capable candidate, but because such individuals are not given tickets, voters really don’t have a choice. That is why the chances of a clean and capable candidate being elected become remote.

There are lot of independent candidates who are non-serious; if we take them out and consider only the major parties as we have talked about serious crimes, leave aside political crimes and look at only serious crimes, the argument becomes even stronger that parties should not give tickets to candidates with such backgrounds. Here is an analysis: There were 178 constituencies where parties gave tickets to candidates with criminal backgrounds; out of that 67% won who had no pending criminal cases and were clean. But in a situation where four or more parties gave tickets to candidates with such backgrounds, only 17% of clean candidates were elected. It means that for the political parties too, it makes sense to give tickets only to those people who are clean and honest. Data on the assets of MPs are also available, which will be shared in this seminar, but in the current Lok Sabha, we know that there are two MPs who have contested and won. They were sent to Lok Sabha to represent their parties, but both are in jail today. Who is responsible for this? Who will now represent the people of those constituencies; how will their voices be heard? This is a serious question that we have to think about.

Ms. Manjira Khurana

While most of us know this vaguely, the hard facts are really intimidating and a compelling reason for us to take action. This is one of the reasons why ‘aam aadmi’ like us are coming together. We start the most interesting session of today. Let me invite on stage our moderator, Ms. Mythili Bhusnurmath, the Consulting editor of The Economic Times; she has a reputation for great strictness, integrity and honesty and is an apt person to moderate this session. Our most honoured guest is Shri Dinesh Trivedi, Union Minister of State for Health and Family Welfare. Mr. Trivedi really needs no introduction; he has been one of our most unusual and vocal politicians, acting more like a civil activist than a politician. Mr. Rajeev Dhawan, our guest, is a senior advocate, Supreme Court of India. He is an authority on constitutional law and is eminently qualified to participate in this debate. Mr. Mendiratta is our supporter and an active member of FAME and currently advisor to the Election Commission of India. He is one of our key directors. I am sure that we shall have a very interesting panel discussion.

Moderator: Instead of the usual presentation by each panellist, we shall plunge into a general discussion as we have been talking about this for many years. Unless we get into a plan of action and decide what we can do, we are not going to get anywhere. We shall throw questions to the panellists and ask them to respond and try and keep as much time as possible for questions and answers.

Mr. Trivedi, you have been part of the government now and we have heard talk about this for such a long time. What can somebody sitting in the government, like you as a minister, do about it? Though this is not your portfolio, can we really think of doing something? We heard Mr. Bairwal talk about the data. It is exceedingly distressing to find that things are going from bad to worse. Is there anything concrete than you can suggest?

Mr. Dinesh Trivedi: It is a very important issue and quite huge. We can only reflect our thoughts and that is what we are doing. The organisers deserve to be complimented for organising this particular meet. Mr. Lyngdoh is very strict about what should be done and what should not. When I received Mr. Rao’s invitation for this session dealing with criminalisation in politics, I definitely had to come and was ready to forgo other engagements, as this is very close to my heart.

To come back to your question, somewhere down the line, I think this malaise is the reflection of the society. At the end of the day, whether one likes it or not, we get what we deserve. The reason I am saying this with a lot of cynicism is I have tried everything under the sun. Mr. Dhawan had been my lawyer when I also went to the Supreme Court on the Vohra Committee. That is why I said that I would absolutely be perhaps one of the right people to be participating in this particular session. I even went to the Supreme Court asking them that we have a right to know as citizens, as to who are these elected criminals. It is a much larger issue; I don’t want to digress from your specific question, the answer is yes, we can do a lot. We cannot leave it to the government, the Election Commission or even the Supreme Court, as I must tell you with all the authority and responsibility under my command that we have all failed collectively; whether it is parliament of India or the Supreme Court. I have hesitation in saying this; they can haul me up for contempt. They have failed and so has the Election Commission, on which I will elaborate when you ask me the next question.

Moderator: Mr. Bairwal, Mr. Trivedi has asked who these criminals are. With the data at your disposal, surely you know who they are; there are charges framed against them. Why is there apparent lack of knowledge about who these criminals are?

Mr. Anil Bairwal: Information about these candidates who contest is very easily available now. As Justice Verma said, the political will, will always be lacking. The National Election Watch and the ADR have been trying to organise public opinion. This issue has grown in seriousness for more than 20 years and for more than ten years, the National Election Watch has been trying to do something. If they see nothing happening, people start becoming discouraged. Everybody agrees that this was the case earlier. In fact, in 2008, leaders of the two biggest parties publicly said they would not give ticket to tainted candidates even if they were on a winning wicket. Their public statements are available in different newspapers but when we look at the recent elections, we see they have just not kept their word. This is very disturbing.

Moderator: Mr. Trivedi, these people have been elected, but is it not possible for the government to at least deny them cabinet seats? Why do we appoint them as ministers? It is bad enough that they have been elected and nothing can be done about it quickly to change electoral rules, but surely the government can send a powerful signal by not giving them seats so that we don’t have ministers utilising those seats to make even more money. They are corrupt to start with and will utilise that office to become even more corrupt. We do not nail these ministers; they are very much there even today in power. What can we do?

Mr. Trivedi: It is not as simple as it sounds. If we only target the candidate, then I think somehow around the line we are missing the point. It is the entire system. For example, we may have a very clean candidate but if goons and criminals are going to disrupt the entire election process, then what are we going to do with only one candidate? I shall cite hardcore facts. I fought the last elections from my constituency Barrackpore in Bengal, which is very close to Calcutta. Everywhere I went, I used to walk 12 hours a day for two months. At every place, irrespective of the seven assembly constituencies, one question was repeatedly asked – “can we vote?” Would they be able to vote? I used to show them the advertisement of Aamir Khan folding his hands, requesting people to go out and vote. But that was addressed to people in Peddar Road (an elite locality of Mumbai). Here the citizens of Barrackpore were folding their hands to me, requesting me to allow them to vote. What can one individual candidate do?I do not want to mention what the individual candidate there was up to, as everybody knew about it. There are mafias all over and it is no wonder that people fold their hands and ask if they can vote. I went to the Election Commissin a hundred times; begged and cried in front of the observers telling them of this scenario. How did they expect me to fight elections? What did the Election Commission have to say to that?

As this is my platform, I can tell you honestly that I asked for security for each and every booth. That is what the citizens of Barrackpore wanted. The answer that I got was that the Election Commission was sorry that they did not have adequate security because the central government does not provide security. Then why have elections in the first place? What do elections mean if even one person fears that he cannot go out and vote? It means a farce of an election. What happens then? Let us consider the important point. Somebody has come to office via this hooliganism and this blatant criminalisation while we simply say it was a ‘democratic process’. But what indeed was that democratic process? Looting of the booths, intimidating people and ordering them where go, what to do and looking where they vote. There is much larger menace here; it is not as simple as electing a criminal, because I have observed this from very close quarters. I have raised this in parliament and the Supreme Court. There is also a judgment regarding this, but who is interested in implementing it? Government after government has come. Not a single government has implemented that judgement. Are we serious about it? Or are we going to attend yet another seminar, spend an hour and a half, have a cup of coffee, clap and finally go home? If that is so, I am sorry nothing will happen. Let’s sit down; I will give you the facts and figures. Let’s take up the relevant judgement and ask why this judgement was not implemented? I also want to ask why the Supreme Court sat on my case for more than a year and a half before they delivered the judgement. Without casting aspersions on anybody, let’s call a spade a spade. I am talking about the system, which, somewhere down the line is corrupt.

Moderator: Let me just interrupt over here. We have the former election commissioners with us and can also have their points of view. But precisely, we agree with you entirely that mere talk is not enough. I asked you a very specific question. You are now part of the government. Could you not ask the cabinet not to appoint these tainted people to the cabinet? Sorry for my plain speaking, but what is preventing somebody like you from telling the Prime Minister that this casts a slur on all of us collectively. Let us not associate ourselves with these people. There are allies but even here, some are clean while some are not. Let us choose the clean people and have only them as ministers. Why cannot somebody like you say that?

Mr. Trivedi: Because I know for a fact that a person who has come may look clean; he could be clean but the system that has thrown that person up is a criminal system. He has no say of his own; this is what I feel. The solution is somewhere else.

Moderator: It is a beginning, not a solution.

Mr. Trivedi: No. Let me stress my point further. What happened in Mumbai after last year’s terrorist attack? People came out with candle lights to protest. That is all fine, but the fact is all these candle demonstrations were held mainly for the television cameras. Once again I wish to cast no aspersions, as the candle demonstrations were passionate. But in the recent state elections, all those politicians against whom the candlelight demonstrations were held are back in office. Have any probing questions been asked by the people who demonstrated with candle lights? The answer is a big no.

Moderator: Let me just ask Mr. Mendiratta here; would you agree with this situation? Would you just take it and say that it is just our fate and there is nothing more we can do. Should we be so passive or should we really come out with something concrete? It may be a very small step but I think it will be a very significant step if tainted politicians did not get ministerial berths.

Mr. Mendiratta: First of all, with due respect to Mr. Trivedi, I don’t agree with his statement that the Election Commission did not do anything. The very fact that he is sitting here as an elected member from West Bengal and is part of today’s government shows what the Election Commission did do a lot to ensure that he gets elected. His constituency of Barrackpore voted for him. How did this become possible? It was because of the steps taken by the Election Commission to put personnel of the Central Police Forces in whichever police stations we found were vulnerable. We can’t post personnel from CRPF or BSF at every police station. But with the given limitations, we ensured supervision. I can take some credit on behalf of the Election Commission for doing a fairly good job. Whenever he or his party members came to the Election Commission, we have listened to their problems and tried to solve them within our limited means and the results are somewhat evident. Mr. Trivedi is sitting here as an elected member. If the people of Barrackpore were indeed unable to come out and vote, the result would have been totally different.

Secondly, you have posed an apt question: why has the government failed, as those who with such tainted records are on the council of ministers? Imagine a person who is a member of the council of ministers, being actually a lawbreaker. And when a lawbreaker is the person who is given the power to make laws, what can we expect from that person? How can s/he be expected to make laws that are going to affect him/her adversely? For instance, cases against them would be soon closed. Very recently, we have seen in Karnataka during the last three elections, at the instance or initiative of the Election Commission, several cases were filed against those who had violated the model code or had indulged in corrupt practices. At that time, the government unfortunately had no other option but to register the cases. Later on, when the government was formed, many of those charge-sheeted people were elected. Having entered the Karnataka Legislative Assembly, they prevailed upon the Chief Minister and the party to withdraw those cases and filed an application. We came to know of it not through any official agency, but through newspapers. We opposed and approached the court to demand that these cases should not be withdrawn. Fortunately, the courts accepted our intervention and those cases are on.

Moderator: I will bring Anil in here; I just wanted to ask you that should we accept things so passively saying that the politicians are just part of the society – and in this respect, a rotten society – or should we hold politicians to certain higher standards? What is your experience? Can we simply write off increase in criminalisation, throw up our hands and say it is part of our society?

Mr. Anil Bairwal: What we have observed is that initially in the first five years of election watches, every party would admit to criminalisation being there but would swear that it was not present in their party, and would point to other parties and say that they themselves were clean. At least now, every party can look at itself in the mirror and is forced to acknowledge it. In that sense, I think there has been a positive development. Senior leaders of every political party have been asked this question, particularly in the last Lok Sabha; there was one candidate from UP contesting the 2009 Lok Sabha elections by the name of Jawahar, with 20 murder cases against him. How can the system allow such a candidate to contest? There were in all more than 10 candidates who had more than 10 murder cases upon them. We have already seen the positive difference between the previous Lok Sabha and this one, where the incidence of the crimes has slowly mellowed down. The politicians will have to be answerable to the people. On one thing I would agree with Mr. Trivedi is about people demonstrating with candles; now they have vanished. I think that is part of the reason that most of the measures that people have been demanding have not been taken. If there is consistent and unrelenting pressure on the parties, which organisations like FAME are also doing, I think the results will appear. It is just a matter of applying pressure for a continuous period of time.

Moderator: I am afraid, Mr Trivedi, as you are the only politician, the questions will be directed only to you and you have to speak on behalf of your party. If as Anil says, there are so many people whose political criminal background is known and these are not necessarily winning candidates, why do political parties even select these people as candidates? It is a general question not necessarily only related to your party; all parties are equally guilty.

Mr. Trivedi: I must be very frank here, though I may be totally wrong. But I talk with conviction. I had a choice here to talk nice things and simply say that everything is fine, the Election Commission is the answer because they have done the greatest job on the earth. It is not that they have not. I do want to make a few corrections. First of all, the reason I said the Election Commission has failed is because I had given them specific chart and must have written thousands of letters to each and every Election Commission. I must put on record that Mr. Quraishi was forthcoming and he did whatever he could do under his command. I have no hesitation in accepting that. I had given a study where it was proved that when elections were held with 100% security forces and elections were held with no security forces in the booth or half the booth was covered with security forces, the results were absolutely the opposite. It is not that we won the elections where the security forces were there but I gave a study. The reason I said the Election Commission has failed is because they threw their hands up. A short while ago, someone asked what the EC could do, as they did not have adequate security forces. What the EC could have done was to have extended the elections; like in six phases in Jharkhand; it could have been extended to 20 phases but I cannot accept even one person being afraid to go to the polling booth and say that s/he could not go or had voted against his will because s/he had been intimidated; the reason I was elected is that I fought like hell. My margin was only 60,000, which meant only 30,000. If 30,000 people had voted somewhere else, I wouldn’t have been here. Only I know how I fought this election. And I can tell you that with this kind of a system, no sane person – I am generalising – or good people will step forward to fight an election. In fact, I dare say that maybe the system does not suit me; maybe I should not be in politics. But this would be an attitude to drive away the good people.

Moderator: What would you suggest?

Mr. Trivedi: We have to carry on this fight for 365 days, 24x7, not merely for a Saturday morning. It has to be on a daily basis. I am absolutely certain we can sort it out. We can fix this system provided we are committed on a daily basis. It is not easy; it is a Herculean task. Let’s go deep down into the system and not just be confined to tip of the iceberg.

Moderator: I agree civil society can do a great deal but there is only so much civil society can do. Ultimately, if law, the government, our parliament and maybe even the Supreme Court is unwilling, there are limits to what civil society can achieve. After all, there have been cases where the Supreme Court has intervened on questions that one thinks are arguably within the domain of the legislature or the executive. Can we really expect civil society to fight on its own? I wish to ask Mr. Mendiratta; can we have laws for this? After all, in this country we still see dowry and sati; nothing happens unless there are clear laws. Civil society is constrained. The legislature, executive and judiciary are all powerful bodies. Can we expect them to do something?

Mr. Mendiratta: I’m glad you asked the question. We are fortunate that a representative of the Government of India is here through whom we can make an appeal to the government and also to parliament. It is nearly ten years since the Election Commission made a recommendation to the government, since 1999. You asked as to who is a criminal. If we strictly go by jurisprudence - we follow either American or British jurisprudence - a criminal is one who has been convicted by the court. But what is the public perception? A person against whom 10 cases of murder are pending, has been charged; another person who has swindled thousands of crores of rupees with cases pending against him, maybe also responsible for kidnapping, with other heinous crimes committed; he is a criminal in the yes of public. There are innumerable statistics. In such cases where a person has been charged of heinous crimes, and the commission took the precaution of suggesting that in case of conviction, the penalty would be about five years or more, in such cases, why should we not temporarily suspend the right of that individual to be a candidate? In the eyes of the general public, he is a criminal. This matter went to the joint committee of the parliament, which turned it down on two grounds: our jurisprudence says that the person is a criminal only when he is convicted, so why should they disqualify a person when a case is pending? Secondly, they also said that the judicial system is such that it takes a long time to even start any criminal proceedings. My counter-question was that if that was the concept of jurisprudence, i.e. a person being termed as a criminal only when convicted and sent to jail, then what is the most basic right of a man? It is the right to live with his family, to earn for it, to follow the profession of his choice, to do whatever he wants and to move freely. When a jailed person under trial can be deprived of all these basic human rights, then why can’t he be deprived of this small thing? Where is our jurisprudence? We say our jurisprudence comes into the picture when he is convicted. But why is he being put in the prison during trial in the first place?

Moderator: Iwould just like to get Mr. Trivedi respond to this. The party may have a certain impression but what is your personal impression on this.

Mr. N. Gopalaswami: Mr. Mendiratta mentioned about the Standing Committee. I may be hauled up for contempt of parliament, but in this gathering I would like to share my views on this. There was a move to pass a law wherein those who have been charge-sheeted can be excluded. Along with that, we must have a provision that in any particular case, a fast-track court must be appointed and cases decided, so that the concerned person is not punished otherwise. I was approached by a member of parliament, who expressed an apprehension that there could be false cases filed. He asked me for a suggestion. My reply was that there are three stages of charge-sheet. Once we have an FIR filed, the matter goes before the magistrate, who gives a charge-sheet after being satisfied about it. Where is the chance that it may not happen? But he said even false cases can be filed. My suggestion is that instead of 6 months, why can’t it be made for a year? A provision could be that if only a heinous crime was committed, and if the charge sheet is issued during the last one year, it would not be counted. Could it be a sufficient safeguard? He somewhat agreed. He tried to convince the committee, but couldn’t, because a lawyer politician persuaded them against it. There is still a chance; I am making an appeal to the minister to again persuade the Chairman and the members of the Standing Committee.

Moderator: I think Mr. Gopalaswami made a very impassioned request to you; Mr. Trivedi. What is your personal view? A party may have its particular view, but do you think there is a case for such a law?

Mr. Trivedi: I just want to clarify that first of all, I’m not here representing the government; I have not come here in the capacity of a minister. The reason I am telling you is that I have made some strong comments. These comments are neither of my government nor of my party; these are very emotional, individual outbursts if I may put it that way. My personal view is very, very simple. If anybody has anything to do with any kind of charges, he should not be anywhere near the parliament or near legislative assemblies.

Moderator: I think this reply really deserves a big hand. I only wish we had more politicians like him. It is as simple as that. Yes, the opposition or the party in power can slap some false charges.

Mr. Trivedi: Without naming anybody, an example in Singur is relevant here. The records also would reveal of a girl who was arrested under terror charges. The girl, Pinky, was just four years of age! We brought this girl to the President of India, the Prime Minister and showed them the state of affairs. She was charged under terror laws, for possessing some guns, arms and ammunitions. These are the kinds of things happening. Clearly, we will have to take recourse to some such system where the bureaucracy and the police are not politicised. The problem here is today, the guardians of the law, the police, the bureaucracy and even the legal system is politicised, depending on where you come from. For instance, Mr. Amanullah’s report from Bengal states very clearly that a wife of a bureaucrat was sent a white saree, which implied a threat that if her husband did not fall in line, this is what she would have to wear. The white saree symbolises widowhood in India, as everyone knows. Under these circumstances, if we are not going to protect an ordinary citizen, it is very difficult. He is a poor individual who eke out a daily living. How do we protect him? It is a question of protecting the dignity and the security of the last man on the street. I certainly do not mean anything derogatory either to the Supreme Court, the Chief Election Commissioner or the Election Commission itself. They are doing whatever they need to do but the system does not enabling them to act effectively. It is as simple as that.

We really need to spend hours together and be at it. If a tainted Mr. X is a minister, he has no business to be a minister. If I am an honest prime minister, it does not make a sense to have a dishonest guy in my cabinet. It is as simple as that.

Moderator: I will run quickly through the panel. We need to draw a plan of action; we shouldn’t be merely talking, but to take action. What would you suggest Anil as two three most important things to get cracking on this?

Mr. Anil Bairwal: We can list a few things but as Mr. Quraishi said, there is a long list of suggestions by the Election Commission. Most of us know that has been put in the cold storage for several years now. But in addition to some of the things talked about, I think part of the reason for so many tainted candidates coming into the system is that there is lack of inner-party democracy in most parties. The manner in which candidates are decided has no relevance to what happens on the ground. We have seen this in every party. Inner-party democracy is the first thing that I would like to suggest. Secondly, many reports have been written on this. The 170th report of the Law Commission advocates a law banning tainted candidates with criminal backgrounds.

Mr. Mendiratta: I totally agree with Mr. Bairwal. We do require a law. We are not taking away the right of the person permanently but as long as he is under a cloud, people would feel that he is not fit to be our representative. Yet, political parties select such persons; they perhaps feel that he might be a winner. ‘Winnability’ becomes all-important. There have to be laws that stipulate that as long as he is not acquitted by the court, he must not be given a ticket. I for one, do not agree with what has been said by the parliamentary committee because my argument is that if we can take away a person’s right to live with his family, earn for them, to go wherever he feels, why can’t he be deprived of this one right? This is the first thing that I want on the list. Secondly, we have been saying this right from the beginning; from the Election Commission side we have been insisting that there has to be inner-party democracy. We have some semblance of inner-party democracy now that they at least hold some organisational elections. Otherwise, there are parties on record – national parties – that sit in some room and extend their own terms. For twenty years, they did not hold the elections.

Moderator: Let me turn to the minister now, as he is our ultimate refuge. As far as civil society is concerned, for every Jessica Lal the civil society fights for, there are a hundred Manu Sharmas out there. There is only so much civil society can do. We need your help and the help of your party. What can you suggest?

Mr. Trivedi: I just want to ask one simple question. How do criminals get elected? Okay, they have got a ticket to fight the elections, but how do they get elected? There are two reasons. This is where money power and muscle power come in and that is why elections are not fair. You are only proving the point I started with. I started with such a strong statement when I said Election Commission had failed. The reason why it has failed is that it is their duty to ensure free and fair elections. If criminals are getting elected by money power and muscle power, it means elections are not fair. All these laws have proved that we have to go a long way. The statistics quoted could possibly be wrong. Most of it cannot be correct; either the statistics are wrong or the laws we have are not really helping us. We have got to look within somewhere. My personal feeling is no amount of law is going to change anything. It is going to be a continuous candlelight vigil. Don’t put off the candles, let them be there 24x7. It is a Herculean task. Look at the Vohra Committee; I really had to fight in parliament. Parliament gave me only two hours for discussion and I had to fight back saying two hours was not enough. I needed two days, for which I had to fight tooth and nail. I then went to the Supreme Court; the judgement is reserved for more than a year and a half. I am not casting any aspersions but I would like to know the compulsion for this being kept on reserve. The judgement was pronounced the last minute, on the eve the retirement of the honourable judge.

I think there is something seriously wrong. The Vohra Committee says that your official machinery has become irrelevant; mafias have taken over this country. What are we talking about? If mafias have taken over this country and the official machinery which means the parliament of India and the Supreme Court, has become irrelevant, then what we are talking about also becomes irrelevant.

Moderator: I would like to sum up. What you are saying is you wish to see reforms of electoral spending and judicial reforms.

Mr. Trivedi: There are no simple answers. I would like to see a watchdog; I can be a party to that. I don’t care; I can give up my political activities and be here with you provided you promise me you too are going to be here 24x7.

Question and Answer Session

Q: Mr. T S Krishna Murthy: I am most grateful for the views that those candidates with stained criminal background should not be anywhere near the parliament. I very much appreciate and congratulate the minister for that view. Our question is that the system is bad, the mafia has taken over but is the government going to sit idle on this? Don’t you feel it is our responsibility to the people of India to bring about some change? Don’t you think as a government, we should put down this kind of development in the future in the interest of the posterity of this nation? You are probably the ally of the present government and you have the maximum number of the members of parliament. You can certainly guide the government that at least in the interest of the posterity you should bring about some legal change. I agree with you that one cannot completely solve the problem overnight, but some legal change as suggested by the Election Commission or by the members of the parliament can be brought about. But it is a pity that no political party talks about electoral reforms in its manifesto. How is that you think this mafia grip will continue? Can only civil society fight for it? The government has to provide some lead in this matter and I would like some kind of a response. As a leading member of the allies, you should speak for the people of this country and consider some electoral reforms agenda.

Q: Major-General Khurana: We have been hearing this too often that society gets what it deserves. We have been hearing it too often that the system is rotten. The system is made up of people and the societies are turned to a culture by its leaders. No society draws its own culture. I wish to ask you if a model code of conduct is brought about in the country without a legal enforcement, why can’t the political parties – at least the national political parties – sit together and draw up a minimum national programme that they will not allow a criminal to contest elections. You have gone into managing the contest of elections. I want to go into the basics; very specifically, why should you give a candidate with a criminal background, a ticket to contest elections in the first place?

Q: Mr. Lyngdoh: We don’t have a handle on the political parties and the political parties from my experience are the biggest offenders during the elections. The only way we can handle a political party is by deregistering a party.

I have been making a comment. I am going back to what Justice Verma said today. We have to find a way to deregister a party through political and legal ways and you have to go back to the Supreme Court.

Q: Ms. Satbir Bedi: I am the Chief Electoral Officer of Delhi. I don’t have a question but want to make an observation for the consideration of Mr. Bairwal Anil and Mr. Mendiratta. While we were implementing the much appreciated code of conduct, we realised that once a candidate broke the code and we keep sending the suggestion and keep sending reports to the Commission, all that the candidate has to say is that he was sorry and then along with the elections as nothing happens. It is quite frustrating for the people on the ground, who are responsible for managing this. There should be disqualification of the candidates if it is proven beyond reasonable doubt that he has actually cheated. This power should be in the hands of the Election Commission.

Q: I am a senior advocate and I agree with Mr. Trivedi that it is a Herculean task but my submission is that some beginning has to be made. I entirely agree that those who are criminals should not be allowed to contest the elections. But then my question to everybody is: can we device some kind of mechanism or system whereby those who say they have been falsely charged of an offence are taken care of and are permitted to contest elections?

Q: I am V. V. Rao; I am member of the Election Watch from Andhra Pradesh. Rather than asking, I have a suggestion. I would like to first share my experience; I have my friend Anil here who has started this great task. We have started this trend of election watch. In Andhra Pradesh, in last elections, we had a great experience of doing the election watch with people like Mr. K J Rao, Mr. Lyngdoh and all these people who were a part of these election watch. The experiences of these people have made a big difference in curbing to some extent, the criminalisation of elections. When we are talking about criminalisation, it is not just the candidate as Mr. Trivedi has already told; it is all the influencing factors. During those elections we have seen what happened in the state of Andhra Pradesh. The flow of liquor, which is a regular part of the elections for several years, was properly controlled by a simple verdict of the Election Commission. The DGP of the Police was replaced by a new DGP, who strictly implemented the law; we found that more than 75,000 liquor shops were closed. My suggestion is that it is the commitment and the combined efforts of the people who are experienced and the pressure from the public. I also appreciate Mr. Dinesh Trivedi; he is the last person sitting there whereas they are the first persons to react and they are sitting in the last bench. I feel that to chase people from the political arena, civil society and people who are really experienced should come forward and continuously work for it.

Moderator: We have some specific questions like deregistering of political parties; are political parties criminals? Mr. Krishna Murthy’s question is what can be done, as also about the penal provisions. Would it be a good idea to empower the Election Commission? There are also some suggestions. We will first get your reaction and then have a second round of questions.

Answers: Mr. Dinesh Trivedi: I totally agree with whatever has been suggested, without any kind of hesitation. This is an absolutely must. I start with the last person who had asked and I am totally with him because that is what I had suggested – all of us have to come together. The nation is on fire and we just can’t be sitting somewhere far off.

I agree with Mr. Krishna Murthy as we definitely have a role being one of the largest constituents of the UPA government. I can offer my personal services. I can take some suggestions from you because this is an audience which really means well. We need to change the way things are happening. If you can give me a draft of a letter, I can assure you that I will send the letter to the Prime Minister with my personal signature. But after I send the letter, we have to follow it up. My following up alone is not going to help. You can even cite this particular seminar or workshop saying this was what exactly was agreed and I will take the cue from there and write a letter. You have my personal guarantee. If you draft a letter now, I will send it under my letterhead to the Honourable Prime Minister of India. You have my promise on that as I agree with you.

As far as the powers of the Election Commission are concerned, why are they not using the powers? If they have the powers, they must use them to the fullest. The problem again is that some hesitations are there somewhere. That is up to the Election Commission.

Moderator: Is the Election Commission empowered to impose penal provisions?

Mr. K J Rao: Invoking of Article 324 will be effective. What I would suggest is that we should all come together, pass a resolution, give some time, maybe a maximum period of a year, not more than that, and ask them to take action on the electoral reforms as has been suggested by the Election Commission and various NGOs. We have to come out with a clean case. If they don’t act, we should certainly approach the Supreme Court and tell them of the government’s reluctance to act on this. The Supreme Court, being the final authority should take a decision; otherwise the Election Commission should invoke Article 324. If Article 324 is invoked straightway by the Election Commission, naturally the Court will strike it off.

Mr. Dinesh Trivedi: But do you have the powers?

Mr. K J Rao: If something is not laid down in any Act only then does the Election Commission have the authority to invoke Article 324.

Moderator: Just for my information, has anybody gone with a PIL in the Supreme Court on these grounds. If not, then why?

Mr. K J Rao: They are pending. That is why a time limit has to be given and if it is not acted upon by the government and the Supreme Court, only then can the Election Commission intervene.

Mr. Mendiratta: May I respond to Mrs. Satbir’s suggestion? Actually what she has said is totally correct, because we can implement the model code of conduct within the powers given to us. We can of course express our dissatisfaction, we can censure, ask them to pay for whatever misuse they have done of the election machinery and all that. Her suggestion is that if we feel that the same man is indulging in MCC violations, again and again and we just go on saying that he is hereby censured; she wants that we should have the powers to disqualify a person so that he is to be removed from the election scene at least for that period. She is insisting for those powers for the Election Commission.

Mr. Dinesh Trivedi: I would say that deregistration of parties also is as important to be considered. We have seen hooliganism in many parts of the country; day in and day out the television channels show it. Recently, there have been incidences where some elements of party openly said they were proud to go on a rampage. Why can’t we consider deregistering such parties? This is where I think a strong message has to be sent. I am asking you to consider all facts and figures and take your own sweet time. But put them on notice that this is not on.

I have few concrete suggestions; (1) All the problems start from the process of elections itself. I understand in Andhra Pradesh, I have not checked and verified; on an average, it takes about Rs25 crores for a candidate to fight elections. It all begins there and there is no check and balance. Why can’t we audit the political parties? Today we have political parties who own huge buildings and properties and some parties even indulge in investing in equity markets. Why can’t we audit these parties and demand that they have to pay tax too? Why can’t we have transparency? In today’s world of technology, everything can be on computer. Each and every donation beyond a period has to be on computer.

(2) As for the issue of using state machinery for elections; one have no choice as one uses the same police, bureaucracy and enumerators who know which house is voting which way. Many names are, therefore, cut off. There is a reason for it. There is much more deep disease than what it appears on the surface.

(3) Even on the manifesto, if a political party promises the moon; or say, one promises a seaport in Delhi, one should be hauled up and find out how it has been possible. There has to be an audit on our election promises too, as to what has really been done on the things that have been promised. There has to be some audit, and without a watchdog, it is very difficult to do it.

Q: Iam S D Pershad, retired Secretary of the Election Commission; I have been observing from television and from various newspaper reports that many candidates have been seen distributing money and other things at election meetings and rallies. Notices have been issued by the Election Commission but resources are being squandered without any accountability or fear of punishment. Why does not the Election Commission simply disqualify them and countermand the election so that they should learn a lesson? They themselves are corrupt and they are corrupting the people too. The Election Commission should countermand the polls; disqualify the candidate from contesting at least that election. Another thing is the mixing of ballot papers, which previously used to be the practice. Now we have voting machines where it is difficult to mix up, but it can be done. In a constituency, voting machines can be taken not serial-wise or polling station-wise; they can be taken at random so that the candidate does not know who has voted for whom. People should not suffer at the hands of the candidate for not voting for him. That should be the criteria. If a candidate has committed ten murders and gets elected; why he is allowed to sit in the parliament, or made a minister? There should be a law that candidates with criminal charges should not be allowed to contest the elections in the first place.

Mr. Dinesh Trivedi: Today we are in the world of technology; it may not come tomorrow, it may come after five years, can we not work towards voting just by sitting at home? You don’t really have to go to a voting booth and I can guarantee you Indian minds as far the technology is concerned are absolutely fantastic. Can we think about a system where we can vote without going to a polling booth?

Mr. N. Gopalaswami: I am making a small comment. Mr. Dinesh Trivedi mentioned that there should be an audit on the promises made by the political parties. I agree and I disagree. I disagree because the promises which cannot be carried out, they make lot of promises, I think it is much better that they make promises which cannot be carried out than promises which can be carried out. Because then they will be looking for promises which can be carried out. In South India, one of the parties promised TV sets and they are delivering it. The next party is already thinking of DVDs for the next elections. Let’s have promises which cannot be carried out.

Moderator: As a former Chief Election Commissioner, Mr. Prasad has specifically addressed questions to the Election Commission. Can I have your response to them? Strictly speaking, these are better answered by you.

Mr. Gopalaswami: Mr. Prasad seems to be ignorant; I am rather surprised the Secretary of the Commission does not know that the Election Commission has no powers to disqualify. Obviously, he is outdated and does not know what is happening. I do not share his views at all because Election Commission has to operate within the framework of the Constitution and the laws of the land.

Moderator: Can we change the laws?

Mr. N. Gopalaswami: This is what we have been asking. This is why I am requesting Mr. Trivedi to write a letter to the Prime Minister to consider in the interest of the future of this country. That is all we want.

Mr. Mendiratta: Let me answer Mr. Prasad’s second question about the polling station, counting and all that. He suggested that we may take up the ballot boxes at random but the law provides that in every democratic election we must disclose how many votes have been polled where but we need not tell as to how they were voted. If this is your concern, for your information and that of everybody else, the Election Commission has already devised what we call a ‘totaliser’ wherein we would put 14 polling stations, 14 voting machines in one totaliser and that totaliser will give you the break up of the votes polled in those 14 polling stations, not individual polling stations. But we have written to the government to amend the law because some amendment in the rules is needed. We have been pursuing this with the government for the last two years. Again, I would request for this to be implemented. We have seen in Jhansi and in some other areas, a dacoit’s mother stood as a candidate and the murderer went around threatening everybody that if they did not vote for his mother then the whole village would be wiped out. In case of such a thing, we can put the totaliser to use by combining different polling stations from different areas so that people would not know. Incidents like the one that Mr. Quraishi mentioned wherein a chief minister, head of a state, has promised Rs5 lakh for each village that voted for him would not happen. A small amendment is needed in the rules to provide for the totalisers.

Q: We have discussed many things about criminalisation of politics; can the honourable minister suggest some commission to sort out so many issues, one that may comprise of senior CEC and ex chief justices?

Moderator: Haven’t we got enough commissions in this country?

Mr. Lyngdoh: Coming to the comment made by Mr. Trivedi on the enormous amount of money in Andhra Pradesh elections, the reason, according to me is that Andhra Pradesh was the favourite of the previous government and a favourite of this government too. The other thing about the audit of the political parties is an issue that has been going on for a long time. It has been audited by just one auditor but the important thing is the main source of money of all political parties, what they use from the treasury in terms of projects on which they take a huge percentage. That cannot appear in the books of parties and that is the stuff which goes to the Swiss bank too.

Q: Mr. Thomas Mathew: I was formerly with the Election Commission now working as expert on elections. In all these discussions, we have forgotten the major point; the voter. We are not speaking about empowering the voters, the secrecy of voting and nobody being able to find out for whom they have voted. If the Election Commission can provide a safe environment in the polling station to vote for the candidates in the way they want, the voters are empowered if they know that their votes are secret. If the votes are not polled in a fair manner, there are malpractices. it is for the Commission to look into it and put a stop to all this.

Q: Mr. Varun: Mr. Trivedi is here; the common perception is that money and muscle power can dominate. Mr. Trivedi’s party, for the last twenty years has been protesting consistently and vociferously that the elections in West Bengal may not be as clean and fair as one would expect. This time around, the results would show that the ruling party can be humbled though they deployed money and muscle. This goes back to the earlier point which he said about the voter. In this whole discussion, we really need to keep the voter in mind; 1977 was that elections. I would really ask Mr. Trivedi was the law inadequate or were the procedures not being implemented? What would you say about the West Bengal elections of 1977?

Q: I am Kuldeep, editorof a portal on development issues; Mr. Trivedi has raised a very good issue of allowing the voters to vote from their homes. I don’t know if it is criminalisation or money power, but these issues come into the picture in the duration between the nomination and election. Should we allow voters to cast vote from home or should give them a period of one or two months or only seven days after the nomination of the papers? The longer the duration, the more people will have loopholes to exploit the system.

Mr. Mr. Anil Bairwal: Issues were raised about false cases; we have done a bit of digging in that and we have found that there is some truth in that, which needs to be taken into account. There is also another side to this. Using RTI, in the latest elections, we tried to get some data; so far we have got it only from Haryana. The cabinet ministry of Haryana, through a cabinet order, withdrew cases on 90 politicians. During the last elections, some of them came out ‘clean’. The same thing has happened in Karnataka and some of the people against whom the cases were withdrawn are now causing problem to the state government itself, which all of us are aware of.

The last thing I want to say is that the biggest culprit, which all of us agree, are the political parties. How do we get them to be more accountable and transparent is one thing on which we need to spend our time on.

Mr. Mendiratta: If whatever we have said is followed, then I think it is more than enough. Mr. Bairwal has raised the issue of transparency of the political parties. I will tell you one thing. We made a proposal to the Election Commission that the accounts of the political parties should be audited by some auditors whom the CAG or the EC may appoint. That report was placed before the Committee for the State Funding of Elections, which was headed by (the late) Mr. Indrajit Gupta, but was rejected. The political parties were not agreeable to that and stated that they were getting accounts audited by their own people and that system was working ‘alright’.

Mr. Dinesh Trivedi: In conclusion, I must thank you because this is very close to my heart. At the outset, I wanted to stimulate a debate. Indians deserve much more than they get. The initial statement which I made that we get what we deserve is perhaps good enough for the audience here but Indians deserve much more. The reasons they are not getting it is that they are too worried about two square meals. I personally feel that we ought to look at some other alternative of the process of election. Maybe there can be a preferential system where one has a list and the option of not voting for an individual because of his background. Thus, even if there is one criminal on that list, people can say that they would not vote for that party because a criminal is there on that list. I think we need to have a re-look at the entire thing and I totally agree with whatever has been said; a lot needs to be done. I am sorry if I have offended somebody in the process of my remarks. It was all meant in good spirit and I stand totally committed; I am not at all running away from here. I am 24x7 available as and when and whatever is required of me, I am there for you.

Moderator: One very powerful thing that has come out of this session is:

Mr Rao can get a letter written suggesting to the government concrete things that have emerged from this. Mr. Trivedi has generously agreed that he is willing to keep the pressure on through him.

We talked about candidates threatening to send a white saree, a symbol of widowhood. I think, hopefully, if we keep the pressure on it will become the white saree a bride wears in Kerala, a state where I come from. Hopefully, it will be a situation where not a widow but a bride wears white. That is when we would have to make reason to celebrate. Seminars like this and people like you have to make a difference.

Mr. Dinesh Trivedi: The reasons this time the elections were different was one big huge factor, which was fear being absent. After Nandigram and Singur, the fear factor amongst the voters has gone away and that is why you see the results; a huge margin.

Ms. Manjira Khurana: Thank you for a very illuminating session; thank you Mr. Minister. He has lived up to his promise. I would just request Mr. Lyngdoh to please come on stage. We said we would do away with the traditional welcome of flowers and we want to carry the flame of FAME forward. I request Mr. Lyngdoh to give a small memento to our distinguished panellists. Mr. Dinesh Trivedi, if only more ministers were like you, may be our life would get infinitely better.

Mr. Mendiratta, though one of the family of FAME, is a very important member leading this side.

Mr. Mr. Anil Bairwal, who is leading Election Watch can be our watchdog.

Most importantly, Mythili Bhusnurmath of The Economic Times, has moderated the session the way it deserves to be moderated. She has lived up to her formidable reputation of candour and honesty of purpose.

Session II: Money Power in Indian Elections

Ms. Manjira Khurana

Friends, distinguished delegates and panellists; I welcome all to the afternoon session of the National Seminar on Electoral Reforms, following a very interesting morning session. We have the next session which is a key session on money power in Indian elections. Before we begin the session, I request Mr. Mr. Mr. Anil Bairwal of National Election Watch to please take the stage. He is the coordinator of an NGO that tracks the use of money power, criminal backgrounds and advantages that candidates and parties draw from these. He has been at it for the last five years. Anil will share some data which are hard facts at the beginning of the next session.

Mr. Mr. Mr. Anil Bairwal

Good afternoon, friends. I am sure that when we go through this data, a lot of people present here will become more active and would ask more questions when we have the panel discussion. I shall share some hard facts. All this data are based on the affidavits filed by the candidates, as was the earlier data. These declarations are under oath; candidates have to give this data under affidavit, so we are not cooking up anything here. Everything is available on our website as well as on the Election Commission’s website; you are free to go and check the veracity of the data.

For instance, if we look at the number of crorepatis, our census, the National Survey of Sample Organisation doesn’t even come up with the figure of the number of crorepatis in India, because the number may be very small. But if we look at Lok Sabha, the number of crorepatis is 315. How does it compare with Lok Sabha 2004? There were 156 crorepatis in 2004; there is a tremendous increase of 102% in the number of crorepatis representing us in the current Lok Sabha.

What about the average asset of an MP? The average figures for India say that 77% people live below Rs20 a day but the average assets of our Lok Sabha MPs in 2004 was Rs1.86 crores; in 2009, it is Rs5.33 crores, a jump of another 186%.

There are many MPs who like to re-contest. In fact, some of them like to keep re-contest for long. Since the affidavits were made available, we looked at 2004 and 2009, to see how many candidates were re-contesting. We found 304 such MPs who re-contested. We then tried to look at the amount of assets declared by them, including their previous declarations. We found that the average assets of these 304 candidates in 2004 were less than Rs2 crores, based on their own declarations; it has gone up to Rs4.8 crores, a jump of 290%. The average asset of a Lok Sabha MP has increased by 290% in five years. We can debate as to what extent this represents the common man’s assets in India.

While looking at criminal records, we tried to ascertain whether it was confined to any party, i.e. whether a particular party was giving tickets to tainted candidates. We found that regardless of the party or ideology, every party was doing so. The more assets one had, the more tickets one was given.

If we look at the Congress, out of 206 MPs, there were 146 crorepatis, which is about 71%. 51% MPs are crorepatis in the BJP; in the Samajwadi Party, the third largest party in the number MPs, it is 61%. BSP – 62%; JD (U) – 40%; DMK – 72% and Shiromani Akali Dal – 100%. Every party, regardless of its region or ideology gives tickets to people who have at least a crore of rupees.

We have looked at states; are there states with more crorepatis coming or with more general representatives of people? We found that this was not the case. The more MPs coming from a state means more crorepatis MPs coming from that state. UP has sent the maximum number of crorepatis; 52 out of 80, which comes to around 65%; Maharashtra – 79% of MPs are crorepatis; Tamil Nadu – 64%; Karnataka – 89%; Punjab – 100%; Delhi -100%.

Average assets of MPs party-wise: Do parties like to give tickets to common people or persons of their vote bank? We again found that was not the case. For the Congress, the average asset per MP is Rs7 crores; for the BJP, it is 3 crores; BSP – Rs4 crores; DMK – Rs5 crores; one can just look at the party and find that one needs to have at least bunch of crores (rupees), before one can get into elections and then get elected.

The situation is the same state-wise. The maximum number of assets per MP comes from Andhra Pradesh – Rs15 crores; Maharashtra – Rs8 crores; Punjab – Rs11 crores and Haryana – Rs18 crores.

One question which we wanted to see was whether the money played a role in the chances of winning of a candidate when they contested elections. Obviously it does, and there have been studies on this. But one thing that came across very clearly in our analysis was when we divided all the contesting candidates who contested the Lok Sabha 2009 into four categories. One: Low assets – less than 10 lakhs; medium assets: 10 – 50 lakhs; high assets: Rs50 lakhs – 5 crores; very high assets: Rs5 crores – 250 crores. The maximum assets somebody had declared were more than Rs1900 crores but that was a false affidavit; unfortunately, nobody has done anything about it. The person had filed the affidavit from Tamil Nadu.

We looked at whether the assets had any correlation with the chances of winning. If one had average assets of Rs5 crores or more, there were 343 candidates who contested with more than Rs5 crores of assets, 112 of them won. This means about 33% candidates who had more than Rs5 crores were able to win the elections.

In the next category, with Rs50 lakhs-5 crores, there were about 1,600 candidates, of whom 290 won; about 19%. If one had more than Rs5 crores, one’s chances were 33%; between Rs50 lakhs and 5 crores – 19%.

What was the margin of difference between Rs10 lakhs and 15 lakhs? It came to around 6.25%. But what about the majority of the candidates who contested with less than 10 lakhs? The percentage was 0.43%. That means less than only 0.5% of the candidates who did not even have Rs10 lakhs could win the elections.

There have been many studies on this. Let us take declared assets, for instance. The declared assets of a chief minister, who is currently in the news, are nowhere close to his real assets; these are only declared assets. This is one area where a lot more needs to be done. This is completely subverting democracy and squeezing the common people out. I am sure other panellists will discuss this and give it serious thought.

Ms. Manjira Khurana

Thank you, Anil. These are indeed chilling facts. We will begin the next session. I invite on stage our moderator who really needs no introduction. Mr. Vir Sanghvi, the youngest editor in India, writes on all matters of common interests and a matter closest to my heart, which is food. From politics to food, he has assorted interests with a razor-like pen.

Professor Bhattacharya, Vice-Chancellor, Jawaharlal Nehru University is the VC who has changed the way the universities are administered. He is a VC who has dealt with students with an iron hand but with the necessary human touch; his students love and yet fear him. I do wish that we had the same kind of clout.

The panel will also be joined by Dr. Quraishi, Election Commissioner of India.

Moderator Mr. Vir Sanghvi: Thanks Manjira, and good afternoon, ladies and gentlemen. In moderating circles, the afternoon session is known as a ‘quiet death’ session because nobody is really very awake after lunch; usually people drift into sleep as we talk. Rather than speeches, we shall proceed with questions and keep the discussion open to make this as interactive as possible.

We shall start with the basic questions. How serious is the problem of money power in elections? I wish our panellists to rate it from 1-10.

Professor Bhattacharya: Given the statistics we just reviewed, money is definitely an essential qualification to become a member of parliament. Though the effectiveness of the parliamentarian does not depend on the asset base, the elections seem point to that, especially given the statistics quoted. I would like to add to this. If we look at European democracy as compared to the democracy of the Anglo-Saxon traditions which we have borrowed, in European democracy, money still plays a very limited role except in Italy; whereas in Japan and the US, it does play a big role like in India. Money is still a very important factor. I have been introspecting about why people spend all this big money. The simple answer is that an election is an investment for making more money; it has the fastest growth of return on earning in democratic India presently, with a higher rate of return than most other lucrative businesses. We have to therefore, tackle the root cause. The powers or the misuse of the powers by the members of the parliament in making money, unfortunately even after liberalisation and globalisation, contrary to their general view, has not eroded. Rather, it has increased. I would therefore say that the fundamental powers have to be targeted more, or rather, the misused powers of the members of parliament, who tend to use their positions to earn assets. That to me, is the real issue.

Moderator: Mr. Salve, Professor suggested that investment in elections is actually seed capital to a greater business, which happens to be that of becoming an MP, which is the greater return? Do you think that is too cynical a view? How bad do you think the money power in elections is generally?

Mr. Harish Salve: My views are probably at odds with those of others. If money is a problem in today’s elections, it is because of two reasons: (a) Our completely dysfunctional minds and (b) The manner in which the money is raised, not the role it plays. Let me clarify both my statements. We have not moved beyond the feudal era. We are still counting if a Lok Sabha MP had an average asset of Rs1.86 crores and so on and are then correlating those who have won with their assets and trying to establish some correlation between the money they have and their electoral victory. It is like saying that Alaska is at 0° and India is at 40° and so the world temperature is very nice; it is 20° everywhere! According to me, what is important are those who have not disclosed their assets, who have acquired money the wrong way and are giving us bad governance. That should be the focal point. Money is inevitable in fighting elections in a country as big as India, to turn a billion people to your point of view. The point is – how you get that money and use it? The other problem is of our dysfunctional mindsets. I am sorry to say this, but we have become a nation of hypocrites. We all want to make money and progress, which is a legitimate pursuit of all human beings and yet we want to frown upon those who have done well in life. We simply insinuate that an MP has assets of Rs50 crores? But if he has acquired it the right way, by working hard, what’s wrong with it? I think these are the basic issues that we need to address, and only then will we come to the right conclusion.

Moderator: There is another factor which you didn’t consider. Of course, I agree with you on the importance of how the money is spent or raised, not how much a man has honestly made before he joins politics. But if the elections are going to be such a high stakes game where one has to spend crores of rupees, doesn’t it in a sense narrow down the number of people who can stand for elections?

Mr. Harish Salve: We can reduce the cost of elections. I have two broad ideas that may sound very much at odds with our current thinking. I think we should try and recognise that elections are expensive and do two things; (a) Bring transparency into funding of these elections and (b) Try and see what kind of state funding we can get for elections. When I say state funding for elections, I certainly do not mean the Government of India having to write a cheque for people fighting elections; allow companies to make donations to registered political parties. Registered political parties should be – for want of a better world – corporatised. They should be compelled to have a juridical structure with a CEO who is bound to maintain accounts, who must be answerable if his accounts have not been filed on time, and who must go to jail if the accounts are not properly maintained. Allow corporate donations and make them tax deductible.

Moderator: What is the current situation? Can’t there be any corporate tax the moment you make corporate donations?

Mr. Harish Salve: There can be a corporate donation to the extent of 5% but that is not tax deductible. Make them tax deductible so that 30% of the tax goes to the Government of India, and bring in transparency. In order to do that, we provide for political parties maintaining books of accounts. The Supreme Court can issue a directive. How many political parties do it? How many of them have filed returns? We have to compel them to file a return if they want to fight elections in India. They must have a corporatised structure, akin to a structure of society or something like that. They must have a CEO who would be answerable if the returns are not filed, if the accounts are not in order, if there is any breach any of the rules of recruiting people to be candidates, then they would be disqualified and not be allowed to fight the elections. They should be brought to discipline rather than allowing this kind of an amorphous structure and lament that people use money. The other radical suggestion I have is that public sector undertakings currently are not allowed to contribute to elections. Allow them to contribute to elections but not to political parties. Allow them to contribute to the central elections funds. Let the central elections funds be manned by the Election Commission which would set up infrastructure for helping campaigning. The Central Election Commission can buy TV time and distribute it equitably. The Commission can also raise money through buying newspaper space and distributing it equitably. It can create infrastructure, grounds etc., where it equitably provides all political parties a facility to campaign. We can reduce the cost of fighting elections; bring in transparency from where the money comes in. These are the kinds of solutions we should be looking at.

Moderator: Mr. Gopalaswami, we know that companies are now allowed to contribute to political parties. Yet, the majority of funds raised are not by cheques but black money. Is there something in the Indian mindset that works against transparency? Is it possible for the Election Commission to accurately measure the kind of money that has been spent on elections and do something about it?

Mr. Gopalaswami: I think the Commission does not have any mechanism by which it can assess the amount of money being spent. I can give you couple of examples of the order of spending. In Karnataka, Rs45 crores was seized; Rs16 crores in cash; about Rs10 crores or so in liquor in tonnes and another Rs15-16 crores in terms of goodies like gifts for kids, sarees, shirt pieces, pant pieces so on and so forth. If you are one of those people who always believe in 10% law, you would say that this represents 10% and therefore the thing that has not been caught are about 450 crores; if you are a high-percenter saying that you are only catching 5% of what is going on, then you can summarise one-ninth of those crores. In Andhra Pradesh Rs40 crores in hard cash was apprehended. The money being spent is enormous. My view was that the commission meet muscle with muscle but can the commission meet money with money? Now after listening to what Mr. Salve has said, I think the Commission should make money with money. You create your own funds; the procedure can be worked out. There is now a need for giving a very hard look at the state funding in whatever manner; again, the procedures could be worked out for the state funding the elections. Second, and more importantly, two aspects are really worrying: (1) I come from a state now where I reside and not the state where I was earlier; it is common knowledge that in the last two elections there, money was distributed. Any number of people would be willing to say how people came at night, gave them cheques and cash, beginning with Rs500 per vote, and if believed to be supporters of the other party people, the offer would climb to Rs1000. That isn’t all, though. The distributors of cash would also note down the names of those to whom the money was given and if they did not turn up at the polling booth, the money they had received as bribe would be taken back as they did not show up at the booth to vote.

I heard something more drastic at another place. Money was being distributed in a mohalla and the party distributing the money knew a couple of houses had people who were not of the same persuasion. They were people belonging to a different political party; their mindset was different. Those two houses were skipped. People in the house asked them why their house was being skipped to which they replied that they were aware that they did not favour the party the cash-distributors were ‘representing’. That family then replied that having taken the money, they would vote for them only and asked them not to worry. In yet another incident, a party which is not known for its belief in God took recourse to distributing money in temples. The recipients were told since they were taking money in the presence of God, they better beware. If they dared to vote against them, they would be punished by God. Not to forget the party which had no god at all; they said they were atheists.

The issue I am more worried about is about a particular party which made an election promise that if they came back to power, they would distribute television sets to every household. They are carrying it out. I now hear rumours that the other party wants to come to power promising to deliver DVDs. Such money being freely doled out is actually from the taxpayers’ kitty; this is visible; the other one is invisible. Every party wants to get into the act by distributing such stuff; I remember Mr. Jayprakash Narain raising an issue before the Commission, whether this could constitutionally be a valid proposition. In a manifesto, parties promise television sets if they come to power. That is another worrying factor. The learned professor has quite rightly said that we will have to come out on the streets. Do MPs and MLAs who get elected make money? Yes, I believe they do, as they are very rational people. If they are putting a crore of rupees against 10 lakhs or Rs25 crores against 25 lakhs, they are quite rational people expecting to reap much more than that. One has to look at the issue of transparency and ensure that the generation of black money does not take place or in other words, decisions taken are transparent and the public has the opportunity to look at them.

We should also look at the possibilities of meeting money power with money power, at least in terms of election funding. I think the time has come for the state to fund elections but would like to add a note of caution. Earlier, a couple of committees had suggested that there should be some funding and had suggested certain things – partial funding is no answer at all. Funding should be total and I don’t think it is very difficult. A quick calculation is possible: we have 543 MPs; the ceiling is about Rs25 lakhs each which comes to about 125 crores; we can add an equal amount to political parties.

Moderator: So you advocate state funding. Professor Bhattacharya, do you think it is a good idea? In principle, it could be a good idea but the basic question remains: what would prevent the returned candidate from spending extra. Everybody has an equal share. Unless there is a law, nobody would be allowed to spend even one paisa over and above state funding. I think that will be the crux of the issue as everyone is treated alike and everyone would like to be over more and more.

Another point I would like to mention is about the issues that Mr. Gopalaswami raised. Four years before the elections, there is accumulation and during elections, redistribution takes place, a cycle that occurs in Indian politics. Elected candidates, once they make money when in power are aware that they have to spend a part of it, which is where the distribution takes place. The poorest of the poor know that they are not going to get a share of this otherwise, and want to get a small share of the redistribution. They do not care how during the rest of the year, the elected candidates or people in power will accumulate money. In any case, they do not have a say in that matter and want to remain satisfied with that small amount of redistribution money which they get during the election time.

Now that we are on the public funding of elections, how would it work?

Mr. Harish Salve: Let me again say something adverse. I agree with the need for public funding; the first thing we need to do is do away with the ceiling. I am sorry to use strong words but the ceiling is nonsense. It is observed in its breach and we all know that.

Moderator: I want to interrupt – should we do away with the ceiling because the Election Commission is clearly incapable of enforcing it?

Mr. Gopalaswami: A former prime minister once said that we enter the Lok Sabha or the legislature with our first lie.

Moderator: The first thing you do is lie when you become a legislator.

Mr. Gopalaswami: Let us at least save them from one lie.

Mr. Harish Salve: Let me tell you why. There has to be a multi-pronged attack on this menace that we suffer today. As Professor Bhattacharya rightly said, we recycle corruption. One makes money easily for five years and then puts back a little into the hands of the voter, in the wrong way. We have to stop this cycle of corruption. First of all, do away with ceiling so the compulsion of spending in cash instead of by cheque disappears. Spend as much as you like; what to spend on is the second issue.

Educating the voter is necessary. Fund the Election Commission, which can educate the voter that if he is going to sell his vote then he is going to live in servitude. He has to remember that the man who is paying him to vote in his favour is not worth voting for. The voter has to be educated.

There has to be policing of malpractices like distribution of money. Fund the Commission so that it can effectively police this part instead of chasing the candidate on what he is spending, or enable them to police for these kinds of wrongful expenses.

Moderator: What do you mean when you say policing? Please explain that.

Mr. Harish Salve: If a man wants to spend more on four extra advertisements in newspapers, simply by putting two more advertisements, people are not necessarily going to vote for him. If he wants a little more time on TV, which is beyond the state funding, let him spend for it. If he thinks two more appearances on TV puts his message across, one isn’t sure how much of that is going to work. But when I say policing, it actually means policing what goes on in this field by way of bribery and corruption of the voter, things like distributing liquor and TV sets etc. The Election Commission today does not have the manpower to enforce this. If it has the money and muscle to enforce measures against these kinds of malpractices, it should stop worrying about how much one is spending. Make sure that political parties get money by cheque, are corporatised, held accountable and file their returns on time. If the Commission finds any evidence that a political party has spent money beyond what it has in its accounts, deregister it. Policing should be at the political party level, rather than worrying about what the individual candidate has spent. It may be more doable.

Though we aren’t discussing this now, we have to change the kind of people who are in the fray. It cannot be done by driving rich people away and getting poor people or people with lesser assets in. That is a feudal mindset. The right kind of people will come in when we change the basic rules, try and remove the compulsion for people to make money because it is thoroughly unrealistic. I have seen elections because my father was in politics. In 1966, the limit was Rs.30000 and the constituency was 105 miles from corner to corner, which was ridiculous – we have always had ridiculous ceilings. When one spent Rs6 lakhs, the ceiling was Rs.30000; when one had to spend Rs15 lakhs, the ceiling was Rs5 lakhs. These kind of gestures in India are nothing but tokenism. We try to put on an act of being a great moralistic country because we are not allowed to spend. How do we do it? We fix a ridiculous ceiling and then let people do whatever they want to do. This tokenism is not going to work. Let’s get real and practical. Today is a time where politics is a profession; forget these starry notions of public service. Somebody who is joining politics doesn’t necessarily have to be corrupt; he may be joining politics because he enjoys being in it.

Let us remunerate our ministers properly. These are gross areas generating corruption. My father has been in public office and I know had he not paid his monthly bills, because there was no way he could have paid them out of the Rs.15000 cheque he received. One is expected to run a house; how does one acquire such kind of income overnight? We are compelling people to be corrupt. How can you expect a clean system where the moment one becomes a minister, which is what most aspire as a professional politician, one are immediately pushed into corruption because one cannot live a decent middle class life in the kind of salary that one gets.

Moderator: Mr. Gopalaswami, the idea of policing, Mr. Harish Salve is saying that if we start policing how much is spent by each candidate, whether it is above the limit etc. is a futile exercise because we will all agree the limit itself is unrealistic. He is suggesting (a) Equip the Commission with a policing mechanism – give it more money and more personnel; (b) Once you have got this mechanism, don’t worry about whether the individual candidate is spending more or less; worry about whether a political party is spending everything by cheque, whether it is using black money and look at whether that money is being used to buy votes, if there is bribery.

Mr. Gopalaswami: I can’t agree with all the things said. What I would still prefer is a certain amount of ceiling whatever it is; if Rs35 lakhs is not sufficient, make it Rs50 lakhs and if even that is not sufficient, make it one crore. The point is when we allow people to spend on their own and then start policing; the policing itself (1) will take all your energy. (2) More importantly, whom are we going to police with? It’s observers; we have any number of observers who can’t do an honest day’s job. We have any number of observers who will know something and like the three monkeys just not say anything at all. Then we will have two levels, there will be yet another person whom one have a chance of bribing. Why do this? I must add one more thing. In most places, the communists’ parties’ representatives do business within that Rs10 or 25 lakhs. We have seen this in UP and in other states, Karnataka; they are able to go and contact people home to home and canvass; they are still able to make do that within that limit. If Rs10-15 lakhs is not sufficient, make it Rs50 or 1 crore, but have a ceiling for everybody and decide the various issues within that. One can go for a fixed number of insertions in newspapers, TV debates and other facilities. Only that limited policing is possible. But unlimited policing, wherein people spend any amount of money is too difficult for the Commission.

After the elections are over, no observers believe sitting with the Commission to do anything at all. They just looking at the signing of the certificates for the Member of Parliament or the MLA elected and then scoot. Even when we had video coverage, to sit every evening, have a look at the video coverage, observe the difference between what is being filed and what is not mentioned in the accounts is itself an exercise many observers are unable to do. In the previous session, one speaker advocated having video coverage done and then comparing the video coverage with the actual amount of information given in the accounts, so that if the candidate has done something wrong, he should be punished.

He said that the party should be deregistered the moment it has crossed the limit. I advocate deregistering the party and disqualifying the member for the elections, both of which must go together.

Moderator: That is fine, but what Harish was suggesting is a philosophical shift. He is saying that your emphasis now is on saying this unrealistic limit must be maintained. You advocate moralistic limits, whereas he wants to move away from trying to police the kind of money spent and instead try and police how it is raised; whether it is black money being spent; whether it is being spent on bribery. He is suggesting in terms of policing a philosophical shift. Would you agree a philosophical shift away from just the amount of money, to the way in which it is spent, whether it is spent on bribery, or in black or white?

Mr. Gopalaswami: In that case, I think it is much better if we don’t do anything at all. If we are not going to police and monitor it, things are going to remain the same level of misuse.

Mr. Lyngdoh: We are avoiding the issue. The money comes from plain robbery of government funds. It happens everyday, in every government. That money has been spent. Much will go into elections; a part of it, I agree, goes to the state treasury. Many years ago, when I left Bihar around 30-40 years ago, it was well known that 90% of the money was eaten away.

Moderator: What Mr. Lyngdoh is saying and many of us feel is that corruption in the election system is actually a manifestation or a symptom of a much broader corruption. It is a corruption of the way our government functions, the way in which the money is stolen. To look at it in isolation will not work; we have to look at its roots.

Professor Bhattacharya: I think part of the problem, to me, lies in governance issues. As I said in the beginning, the Anglo-Saxon style of elections – though not so much in England as in the US – are always fought with a lot of money and the people get elected as Senators and Congressmen, though not entirely reflecting the earnings and incomes of the elites in that country, I have seen that. By the way, Canada elects candidates much cleanly. I have wondered on this issue – what exactly the system is that enables one set of democracy with cleaner candidates and another set of democracy producing only money power corruptions. This seems to be probably to be a paradox; we haven’t done much on research. In France, elections are fairer, while in Italy, elections are all about money power. What exactly is the mindset produces? Pending that, let me get on with the governance issue that I talked about earlier. Take the US – when Barack Obama resigned from his Senator position to contest for Presidentship, according to Illinois rules, his seat was to be filled up in the interim period by the governor himself. The then Illinois Governor of East European origin auctioned the signatory and got a lot of money. When it was revealed, it took the Illinois State Senate less than three months to investigate case and impeach the governor. In India too, we have seen money power on display many times, yet somehow either through the judiciary or legislation, people get away. There is no punitive action, nor any strictness. Everybody presently enters politics knowing there is no accountability anywhere.

Let me illustrate with statistics. I was looking at the statistics from Punjab. Parties there, including the Akalis and others, generally call themselves agriculturalists and claim that they are tax free because they earn from agriculture. But following land reforms, the land law says that one can’t hold more than a stipulated amount of land. Parties in Punjab blatantly get away by declaring themselves to be ‘agriculturalists.’ In the general elections, two of the candidates declared their assets – one worth Rs658 crores, in my constituency and the other in the neighbouring constituency declared assets worth Rs532 crores. I asked how they dared announce such a figure. Were they not afraid that the income tax people would go after them and find out how they got this money? Clearly, the lack of accountability has taken the law and this country for a ride with such confidence. I asked a tax lawyer how many people in India have been jailed for not paying tax. His answer was – none. Therein lies the problem. Any system, any punitive action or policing we talk about, has to eventually function. If a person is caught, more than the punishment, it is important to deter him, as an example to others to demonstrate what would happen if anybody transgresses the limit. But when everyone aspiring to be a politician knows that nothing is going to happen to him, how do we tackle this problem?

Mr. Harish Salve: I wanted to say something about the point the Professor and Mr. Lyngdoh raised that really goes to the heart of the matter. What kind of people are we bringing forth? I want to say few things about this. First of all, we have to change our mindsets. On the one hand, we are sort of cynical about the fact that it is the more affluent people who are joining politics but please look at the other side of it. It is better to have a person who has achieved something in life joining politics than to have somebody who is joining politics to achieve something. It is these kinds of people who become MLAs and MPs and steer the country blindly. That’s one thing. The second thing is, we are back in the same cycle. Having brought these people to where they become the lawmakers, where does it end? Since Mr. Lyngdoh mentioned Bihar, let me tell what happened in India. In 1988, the fodder scam was investigated. I remember the solicitor general who had quit 6-7 years back. I got the case transferred to Jharkhand. Even till 2009, the trial is not over. In one related matter, there was an acquittal and the state of Bihar filed an appeal against the affidavit, but the CBI opposed the appeal. We have become such a shameless society that all this goes on day in and day out before our very eyes and it does not bother us. If we are so happy to live with corruption and are happy to have people who loot us in broad daylight, what can we do?

Moderator: We enter the second round of discussion on public funding and the suggestions each has made. Mr. Gopalaswami agrees to it in part; do you think it will work?

Mr. Lyngdoh: The point I wanted to make was the law recognises only the individual offenders, the law does not recognise corporate offenders and the main corporate offender is the political party. There is no way we can do away with the political party. We cannot even deregister a party because long back, the Election Commission took a view that because deregistration is not mentioned in the election law, we cannot deregister. So we are stuck with that. Today, Election Commission would like to do it.

Mr. Gopalaswami: It is the Supreme Court, which in one of the cases, decided that only the authority doing something can undo the same. In the instance Mr. Lyngdoh is mentioning, they specifically said that one can only register but not deregister.

Mr. Harish Salve: Legally, if you have a problem, you name the statutory claims for this reason. Deregistration of a political party for all practical purposes, is the political death of that party. They are entitled to question the existence of the law that allows deregistering by way of punishment.

Moderator: So how do you punish them?

Mr. Harish Salve: I sometimes feel very dysfunctional and stuck today. As Professor Bhattacharya says, why are not people charged for tax evasion? Why are people in our country so rampant in their violation of laws? It is because of one simple reason – our criminal justice system has collapsed. It needs to be resuscitated. We recently had the law minister call a forum on this and Ram Jethmalani, in his inimitable style, asked what the hell we were doing there wasting time; didn’t we all know that putting more men on the job was the solution. It may sound as simple as that but he was right. We have to improve the criminal justice system because at the end of the day, if the law does not have teeth then the law is not going to work. In India, our laws have all become gestures and they are only handmaidens to be used against politically inconvenient people. Otherwise, law has no bite. Unfortunately, that is a reality.

Moderator: Mr. Mithilesh, we have given you enough time now to settle in. Do you believe in public funding? Why?

Mr. Mithilesh: Absolutely not. I will tell you why. Number one – the very fact that we have not been able to control black money – nobody can – means that we surely can’t do so only in 30 days. If public funding of elections presumes that once we start funding, they will all become clean and will not use their black money, it can be supported. If somebody can guarantee that, I will support it. But the fact that there is an expenditure ceiling and they are supposed to file their returns, even on the expenditure of appointing an observer. All our efforts at curbing the use of excess money are failing. Instead of Rs25 lakhs, candidates use 5, 10, even 20 times that money. We all know this. Mr. Gopalaswami was the first to place on record that we have failed and now taking a cue from that I too have said that. When we know we have failed, what are we doing about it? We are trying to do our best; whatever is visible expenditure for rallies, posters, TV time or newspaper space;,we are monitoring whatever we are able to. But what do we do about black money, liquor, cash, jewellery, changing hands in the middle of the night, things that we cannot lay our hands on?

There was a discussion on political parties three years ago; going through those records one finds that they said that this public funding would be tantamount to subsidising the use of black money. After spending few thousands of crores of public money, they will have more money to slip under the door of the voters at night. Mr. Gopalaswami mentioned this in a lighter vein, but it is true.

Mr. Gopalaswami: I still believe though, that public funding is the only answer. If muscle has to be met with muscle, money has to be met with money. Elections should be funded, but the issue is the certainty of punishment. Mr. Harish Salve rightly said that there is no case in which the punishment was forthcoming. In such a situation, all systems will fail. Only if we can apprehend and summarily mete out punishment can it work. Money or liquor being distributed is one issue; its distribution is in a large measure in certain states like Tamil Nadu, as reported, though I don’t know personally. It is the spectrum money – a spectrum has many colours while here the only colour is black. There has to be sufficient power to immediately take drastic action. The Professor rightly mentioned one single case where they at least built institutions that can take immediate action. They get after the wrongdoer. TRA has now registered the case against the spectrum, though God alone knows when it will see the light of the day. If it is similar to the fodder case, then it will also take 15-16 years before anything is heard about it. If there is no certainty of punishment, then no system can work.

Mr. Harish Salve: If we are going to have public spending of money with everything else remaining the same, we are adding more carrots without any stick.

Moderator: Let me take you through the things which have been said: One is Mr. Harish Salve saying that the present ceiling is a joke, to which Mr. Gopalaswami and Professor Bhattacharya agree. The disagreement was whether we raise the ceiling or abolish it.

Mr. Gopalaswami: Instead of an Act of parliament deciding it now and then, this should be given to the Election Commission and depending on the cost of index at that time, we can rationalise it.

Moderator: I think the criticism of that would be you are in a position to know how much money is spent. You have no mechanism to police it; what is the point in having a ceiling which everybody is going to flout anyway.

Mr. Gopalaswami: I am inclined to agree with Mr. Harish Salve. When we are not able to enforce it properly it won’t be of much use. But as far as the public funding is concerned, I have to add a note of caution. Once funding is given for political parties, there are friends and associates who spend money in spite of all public funding. There are television channels and NGOs that are run by political parties; and I do not think public funding will be an answer to cleaner elections. We can only limit expense at a given time. The only note of caution that I again reiterate regarding Mr. Salve’s suggestion to remove the ceiling is that poor people cannot contest elections as things are now, as money power will rule. But it does not matter because if we are not able to enforce something, why have it at all?

Moderator: Let me now take the other part of what Mr. Salve said about increasing the ceiling. All this is irrelevant without any machinery. The Election Commission should have some machinery. Is that a valid proposal?

Mr. Quraishi: I would like to mention the first point more specifically; there should be some ceiling and of course, a rational ceiling. Because of the ceiling, we are able to enforce many things that would have been nuisance otherwise. If there is no ceiling, there would be a thousand cars in a cavalcade, every wall would be plastered with posters and banners, page after page, entire newspapers will be bought. At least now, we are able to regulate some of the nuisance of activities because of the ceiling involved. I don’t know whether the machinery has been mentioned, but we did not have the machinery. Over a period of time, through judicial pronouncements we have got some power to regulate money; we realised that after the elections, we were just closing the files and moving on. We have now decided to create a new division for expenditure monitoring where we are trying to get a couple of very good top income tax officials who help visualise and set up the kind of monitoring to be done even after the elections like false or undervalued affidavit. In the morning session, Justice Verma mentioned when coming after conference of jurists from Vigyan Bhawan – every lawyer was talking about this – a ten-acre farm in Mehrauli was valued at Rs4 lakhs; there are income tax laws wherein any undervalued property can be acquired at that price plus one extra rupee. Justice Verma offered to buy it twice the price.

Mr. Harish Salve: I have a big problem with the mindsets. If a man says he has a 4-acre farm in Mehrauli, we must take it at face value. How does it matter for our political life whether the market value of that farm today is Rs4 lakhs, Rs4 crores or Rs40 crores? Why should he be asked to value that farm? He is disclosing honestly what is owned by him. Do we really believe that we are going to get rid of the kind of corruption that Mr. Lyngdoh spoke of by focussing on his 4-acre farm? Certainly not, believe me; all the money that is purloined does not go into farm properties that are disclosed. It goes into accounts we have never heard of. Mr. Bhure Lal, who is sitting here, is in the Enforcement Directorate and very well knows that is where such money goes. Everything else becomes shadow-boxing. We just want to lash out at somebody saying he has got a four-acre farm and is undervaluing it. How the hell does it matter?

Mr. ----: Nobody says that you undervalue it. There was a candidate who declared his income as 700 crores; that was fine with us.

Moderator: So you advocate declaring what one likes but not to take people for idiots and lie about it.

Q: During this recent Lok Sabha election, huge money has been spent by way of paid news in the newspapers. People pay for coverage in newspapers and television channels too and the amount ran into crores in Andhra Pradesh. Not only in Andhra Pradesh, it is prevalent in many other states. What are your comments about that?

Mr. Gopalaswami: In UP, we found that there was some reduction in the expenditure; the communist parties’ people came and said that they could not do it within that limit. There was one leader of a national party who met us and said that he had brought his candidate of a particular constituency who said he could do it within the limit but that amount of money was being asked for a local newspaper for publishing about him. There were three rates prevailing at that time: one to write about you; to write about you and not to write about your competitor; to write about you and your competitor. In Madhya Pradesh, we had the same problem. Some people told us about a certain candidate about whom not a single word was written but only about others. We found at least some ways of cornering him for the first time. In the smallest of fonts, the word ‘Advertisement’ was written. We said it should be charged to the candidate. After three days, news reached the management and the ‘Advertisement’ disappeared. But even then, we found the same news ditto, from the first word to the last word, in more than one newspaper. We held that it was an advertisement and not news, and so was chargeable. Now they have become cleverer; I am told that in a recent article by P Sainath in which I read about the Maharashtra and Andhra elections, he talks about media channels and other outlets fixing amount of money running into hundreds of crores. They have collected about 350 crores. If you look at it from the other point of view, everybody is putting their hands into it, so why should the media be left out? They too feel entitled, as they are also rational people. But we need to think of ways by which needs to be attacked.

Moderator: Inspirations; sitting Election Commissioner, what can you do?

Mr. Quraishi: We have found no solutions to the problems we are faced with now and frankly our feeling is, we cannot go hammer and tongs against the media, as they are our friends and allies. We are trying to check malpractices, corruption and the media can reach places where our machinery cannot. Through their eyes, we take suo moto action, but this is indeed bothering us. A delegation that included Mr. Kuldip Nayar met us. Another delegation with Mr. Prabhash Joshi, had also met us sometime back. Reform probably has to come from within the fraternity and maybe the Press Council must take a view on paid news, I think, morally and legally it is wrong. I can say I am in favour of Mr. Sanghvi and therefore am praising him in every article and I am not totally against Mr. Salve and am therefore not demolishing that. But how does one prove that it is because of money?

Mr. Bhure Lal: Things can be set right provided we have a will to do it. No doubt people make money to play politics; people play politics to make money. The point is well taken; everybody is a beneficiary of the electoral system that prevails in the country today. The voter gets a bottle of liquor and note of Rs500; the politicians get huge amounts from title, the bureaucrats get lucrative postings. Why should anyone enforce the law in right earnest, especially when everybody has a vested interest? Till we attack the vested interest, things are not likely to improve. As Mr. Jai Narain Prakash Narain said, there is a nexus between a corrupt politician, a corrupt bureaucrat, a tycoon aided and abetted by a muscleman. The politician needs money to fund elections.The bureaucrats come handy to give the colour of legitimacy to the evil designs of the politicians by framing policies, rules, regulations benefitting the tycoon. To my mind, we should not field individual candidates who declare assets worth Rs700 or 1000 crores. Let them declare; we don’t know how much they are keeping with them. One will be a fool if he makes money through wrong means and keeps it in his own name; he can find many other ways. Let us permit only the political parties to contest the elections; policing will then be easier. It will be difficult to control 10,000 persons, but easier to control 10 political parties. We can police them provided we post the right type of superintendent, controlling and conducting agencies and strict administration. We have to realise the factors that have percolated down to the society, to the activities of our political leaders and others. Tendencies of casteism and communalism have been further strengthened by politicians and fundamentalist elements who want to divide our society. The local phrase is “Vote ke liye aaya hai, CM-PM se lenge, SVDM.” That is we want to capture both, political as well as the administrative power.

We have to make a beginning and start somewhere. This election machinery is dishonest, I am sorry to say. If the election machinery and the district machinery are honest, activities of wrongdoers and money-spenders can be controlled. It is the district administration which will take some remote control; the Election Commission may not be in a position to deal with the situation. Have we been able to ensure the neutrality and impartiality of that administration that is responsible for looking after everything? Or is it simply fine if they keep compromising all the time? I saw the movie ‘Godmother’; in a murder case, a sub-inspector was going for investigation. The murder suspect was also present; the SO, the investigating officer realised that this individual had committed the crime, but tells him silently to run away because he belonged to his caste. The sub-division of society must be put to an end otherwise people can get away with any crime. We may spend crores because the candidate is of our caste from our village. Another thing is the abuse of government power and authority. Are we deploying the right individuals? If the misuse of government power and authority to which Mr. Lyngdoh also referred to continues, if we sell our government power and authority, it bodes ill. In 1994 at Dabhol, they convened a special session on ‘bribenomics’ – what transpired? At the level of policymakers, a sum of 500 million turnover of transactions was the amount that we used to fund elections. Even in our country, in the month of January, the financial policy was changed because they wanted to benefit a particular industry. We have to keep our eyes open. Let political parties be held responsible. Their vicarious activities must be nixed by the Election Commission and they must be debarred and derecognised. If a change is needed in the law, what is preventing us? After all, we want fair and honest elections. The constitutional debates are in place; they wanted to include neutrality of the Election Commission and independence of elections conduct as a fundamental right. But we are compromising our fundamental rights.

Mr. Mendiratta: Everyone is quite concerned about the bribery in elections and wishes that the role of money power should be curbed and some checks should be put on them. Just now Dr. Bhure Lal said that the district machinery and the Election Commission are not that effective. I want to say that the Election Commission and the district machinery has to act in accordance with the laws enacted by the parliament. They cannot do something on their own. I will give you a small example. Bribery in elections is an electoral offence. If we see section 171 B of the Indian Penal Code, bribery is an offence and this particular provision was made in the IPC 1920 when of course elections were not as frequent. Now if we see the CrPC, bribery is non-cognizable offence under it. Therefore, if our machinery or the observer goes to a particular person and finds him indulging in bribery or distributing money, the existing law would need us to wait, while a complaint is lodged with a magistrate, who will give some authority to make an arrest. How can that be tackled? We suggested amending these particular sections about 20 years ago to the government. These were put in 1920 and have to change. At least, make this provision a cognizable offence. The government has not done anything. How can we expect them to effectively implement the law?

Mr. Krishna Murthy: Actually, I tend to agree with Mr. Harish Salve and also some of the others when they say that if we can’t enforce a ceiling there is no point in having it. The whole issue of election campaign financing seems to suggest that voters are really gullible fools, idiots, saleable and completely willing to send the country down the drain. But if we see the history of Indian elections, the voters have voted otherwise more often than not. I would like to ask what evidence we have in empirical terms that all the money, liquor and muscle actually go to win a favourable verdict. If that would have happened, 1977 would not have happened. But more fundamentally, particularly because Mr. Salve is here, isn’t there a constitutional issue involved in it? Because the US Supreme Court in the early 1970s had looked at this issue of campaign finance limits and had said that this could be a violation of freedom of speech and association. If we want to support a candidate, what prevents us from supporting him? This is an issue which I think is deeper than just the issue of limiting the funding of it.

Q: Professor Bhattacharya raised the basic issue of the root cause of why people were investing in elections. That should be diagnosed, whosoever is elected or appointed as a minister or state minister, ways and means should be devised that he is not able to make further money simply because he has invested a crore of rupees and now wants to make 25 crores of rupees. He is bribing the voter and indulging in many other corrupt practices because he wants to make money. That is the root cause for money playing a game.

The second question is about the root cause of money power. Limiting of the expenditure on the election campaigning should be raised ten times. Presently, when expenses have risen like anything, this expenditure limit should be raised ten times; as Mr. Salve has said, the limit has become meaningless. It should be raised further. State funding will lead to further corruption. Government money will be wasted, people will spend from their own pockets also and the government money too. Many frivolous and bogus candidates will stand for elections and they will get the money from the state and pass it on to the other candidates. This happens when they get the concession in petrol, paper and other things. Kindly devise ways and means so that ministers and top officials are not able to further mint money.

Q: I think there was a view expressed perhaps money is not making a major difference to the election outcome.

Moderator: The suggestion was that you were underestimating the voters by saying that they were idiots who would be affected by money.

Q: Maybe in a situation where the choices for the voters are very limited, in a situation where party A or B don’t seem to favour anyone increasingly then money could really become the swing factor. That is one observation. But more importantly, the pro-incumbency sentiment that we all have been talking about is a series of elections where governments are getting voted back. I think there are two kinds of problems. Schemes like loan waiver, possibly a cash bribe, being given a few months before the elections in anticipation of a vote are seen as vote-catchers. Being in power also helps to generate lots of money which is ploughed back into cash bribes. Is pro-incumbency a sign of undue advantage being gained by parties in power?

Q: I am sorry if I probably say things that are very different from what have been discussed. I have a feeling that we are only thinking in terms of more of the same. And I am afraid I am a bit pessimistic on this kind of possible solutions. This will give us 5% more or 5% less. The root is somewhere else, way away from here. I have been a government officer, retired two years ago. I also feel extremely concerned when citizens tell me all government officers are corrupt. I felt disturbed to a considerable extent as it is true. I used to feel – are we to blame? Should I feel ashamed? Realisation dawned on me, all Indians are corrupt, and nobody is born a government servant. Because we are all corrupt, wherever we are, we will make that system corrupt and we collectively make the system corrupt and go through the motions of showing that we are trying to rid the system of corruption. How can we find a solution? In Bengali, there is a saying that you throw sarson (mustard) seeds at a ghost, the ghost vanishes. But what if the ghost resides inside the seed? The problem is in the solution and the people who are trying to enforce the solution. I have a feeling the answer must come radically from a different place; the younger generation citizens of the country. This is the solution that the traditional wisdom of India and indeed, the world, gives us. Today, a fifteen-year old child is drawn into the vortex of politics. Is this the way to run India? A prophetic son of India whom the world has acclaimed as one of the finest persons the world has ever produced, uttered these words of warning a hundred years ago. “If India goes in for politics and social conflicts, she will die.” Indian principles that run through her blood are two – renunciation and service. We see today the spectacle of seeing the future leaders of the country fighting with each other, going for each other’s throats, using language that should not be permitted within the parliament, hurling charges that are not proven or half-proven. When everybody sees this happening to those who talk of renunciation and service, tyaag and sewa, is it any wonder that the nation is going down?

My solution is for all political parties to come together. If necessary, a law should be enacted. I personally do not see much difference between one political party and the other. The differences are 10%, 15%, agenda by agenda. That kind of a difference exists in all administrations anywhere in the country; it is as between one officer and the other. What are we really fighting over? Why create this tamasha or fight when we want to serve the country? Are we competing against each other to say that one is a better servant of the country? Is this the way servants come up? My answer is: let all political parties come together; there are competent people everywhere not all are cynical. Everything discussed here is not all negative; there are positive aspects too.

Moderator: I think we are out of time; I’d like two quick summations.

Mr. Harish Salve: I want to make three quick points: One of the hypocrisies we need to get rid of is crying hoarse about the link between business tycoons and political parties. Let’s be very clear. Rich industrialists all over the world influence politics. Let us accept it, acknowledge it, make it transparent, allow corporate donations as long as they are transparent by cheque; instead of creating this air of disfavour on corporate gift to political parties. This is the mindset we need to change.

Please distinguish between the dishonest politician who bribes and corrupts and the honest politician who wants to use legitimate means of contacting a billion people to win the elections. We are not talking of the second. As my late guru Mr. Palkhiwala always used to say, “There will always be the incorrigible honest who will live within every ceiling and there will always be the incorrigible dishonest who will break every ceiling. Let’s not worry about either of them; let’s focus on the large number of people in between; people who want to live honestly but have no choice and are driven to dishonesty by the system.” And for them, please create a regime in which they can live honestly. Please consider doing away with this air of suspicion saying that we must have ceilings. Bring in transparency, worry about the honest methods and let us see how we can regulate them with partial state funding, with partial transparent private funding and corporatising political parties and making them accountable.

Professor Bhattacharya: We are basically debating on the use of money in elections. I agree that there are good politicians, but as long as politics remains a source of making illegal wealth, it will always attract people who want to use that route and therefore no matter how harsh the laws and the Election Commission would be, they will find a way. To continue from where Mr. Salve left off – three categories of people – I also use that example except that we would always have a small minority who would be law-abiding, no matter how harsh the laws are; and a small minority who will always be trying to break laws no matter how lenient and lax the laws are; in between lies the greater majority who watch which way the governance bends. If they find that lawbreakers do not get punishment, there is risk of breaking the law, they tend to tilt more towards the lawbreakers. If they find a system in which those who break the law once receive harsh punishment, then the in-between group would be more careful in deciding which way to go. We need to cure the system. I am not talking about individuals; targeting the individuals won’t do; we have to evolve a system in which politics will not be the most lucrative way of making money. Then I am sure we will see much more reform in the election process, more and more honest and good candidates will start coming to the elections.

Moderator: Three strange things occur to me to run through today’s debate. I will just outline them very briefly. First, something that disturbs me greatly was listening to some of India’s most distinguished public servants serving and past over here. What worried me most talking to them is the air of complete desperation, of almost giving up when they talk about the system and about India’s politicians; there is a sense that they feel the cancer within the system has gone very, very deep. It is something which would give all citizens a cause for worry.

The second thing I sensed throughout, which one of the speakers also brought it up, is a level of middle-class frustration. We can handle corruption by politicians or civil servants, but what does one do when voters are corrupt? What does one do when voters themselves accept bribes and are willing to vote in certain way? One of our problems has been that we have crooks who stand for elections, people who have been convicted of crimes or just about the way they are convicted to a crime; people who cases are in appeal, they tend to get elected. One of the problems of the election system happens to be that the voters always don’t vote the way people in this room would like them to vote. I thought that frustration came across very clearly.

The third thing I find is that debates like this are always caught in a philosophical conflict. We can strongly advocate changing laws and enforcing measures but ultimately it comes down to what we can do. Cases drag on trial for twenty years; the judicial system is in collapse; nobody will go to jail and there is no stake. Ultimately, I find that whenever I moderate debates like this, we always start with a small point, a micro-thousandth aspect of the Indian system – maybe the electoral system – but we always end up confronting the whole system. We can’t really cure just an arm when the body is sick. That, I think, will remain our problem.

Ms. Manjira Khurana

Thank you, Vir, for moderating a very interesting session indeed. Before we break up, I request Mr. Lyngdoh to come up and present a few mementos. One of our distinguished panellists in the previous session Mr. Dinesh Trivedi said the only way forward is for us not to allow the candlelight vigil to become a one-night stand, as the candle should never go out. Instead of the usual way of felicitating people with flowers, we thought of presenting mementos so that when they put it on their desk and look at it every time, they remember the cause. May they become the candle that will light a thousand more.

Session III: Strengthening of Indian Democracy – Changes in the Electoral System – The Way Forward

Ms. Manjira Khurana:

Distinguished delegates, panellists, friends, we begin our third session of today’s (first) national seminar on electoral reforms. We have tried, in a small way, to organise session of deliberations and debates highlighting the problems that beset us, and indeed every strata of society. We had two very interesting sessions earlier. The first session was on criminalisation of Indian elections; the second on the use of money power in elections. These sessions covered the problem and certain steps forward. The penultimate session hopes to narrow down the body of recommendations from civil society – not from the Election Commission, a committee or a judicial commission but civil society which would hopefully carry the flame forward. I now request the moderator of this session Mr. Arindam Sengupta, Executive Editor, Times of India to kindly take the dais. I also request Mr. Mr. Arun Jaitley, who needs no introduction, to take his place on the dais. Mr. Jaitley, is a well-known figure. I knew him as a DU students’ leader; after that as a leading luminary, a minister and now a member of civil society held in the highest respect. We have Mr. Krishna Murthy, former Chief Election Commissioner who was also Secretary, Company Affairs and is an expert on all things in constitutional and election law, and Mr. K. K. Venugopal, Senior Advocate, Supreme Court of India. He has led a very interesting life; he is an expert on constitutional and election law and we learn that he drew up the constitution of the Royal Kingdom of Bhutan. I also invite Mr. Sunil Khilnani, a professor of politics at the John F. Hopkins University. Interestingly, he is the author of the recently published book, The Idea of India. We hope to benefit from his presence where he can bring in certain practices that are followed in the US A. I leave the panel to Arindam Sengupta, who may define how he is going to conduct the session.

Moderator: Arindam Sengupta, Executive Editor, Times of India

It appears that two main ills have been recognised; one is criminalisation and the other is money power in elections, which are subverting our democratic and electoral system. Going forward, what do we do about it? One of the earlier speakers said that we are getting nowhere as the same things are being said again and again. Maybe if there are small suggestions on things that can be done, we will try and focus on them. The panel we have is quite an eminent one. I have written about these people, who know their subject very well, especially this subject of elections and electoral reforms. I would like to put it thus: India was moving towards electoral reforms, and the last I remember anything happening was in 2004. Mr. Mr. Arun Jaitley was the minister then and we introduced the system of affidavits wherein candidates declared their assets. Thereafter, precious little has been done. We drew up a list of reforms that was given to the government and parliament but nothing much has happened on that. In fact, even on the recommendations and affidavits, a column on IT returns was supposed to have been incorporated, but even that has not happened. There is obviously a lot of inertia and pulls from within the political class that are holding it back. How can that be made lucent?

I wish to ask Mr. Jaitley first, taking up the thread from where he left it in 2004. Through this period, he has represented his political party, which hasn’t really taken the issue centre stage as one of the main agendas. What can be done ahead? If you can give your thoughts; it could be in the shape of a small presentation.

Mr. Mr. Arun Jaitley: Arindam, I don’t think electoral reforms in India are a static concept. I remember in the early 1970s from my days as a student, I have been attending seminars of this kind. And I have seen a gradually evolving agenda; at times the way Indian politics has changed and the management of Indian politics has changed on some of the issues which one considered very plausible three decades ago. The views of many may be directly the opposite today. I remember in the early 1970s, parliament had a select committee on electoral reforms and one of the issues debated at that time was the one Mr. Bhure Lal mentioned in the earlier session –why not eliminate candidates altogether and allow parties to contest elections? And therefore, this will be some kind of a list system; depending on the percentage of votes the parties get, we will probably have that number of seats in the parliament allocated. This debate was primarily supported by the then opposition party, but the government never accepted it for they always felt that somebody with 32 or 33% votes would actually win 60-70% of the seats. JP appointed the Tarkunde Committee, which also suggested the same. There were several suggestions to this effect. If you look at that recommendation today, I remember my two senior party leaders Mr. Vajpayee and Mr. Advani circulated a dissenting note in the select committee in the earlier 1970s saying that we must have a list system.

Thirty years later, when I was considering it, I thought that the way Indian politics had evolved, particularly after 1991, if we now decided to have a list system, we would probably have votes according to caste rather than votes according to political parties. The post-1991 evolution of political parties in India has really been really caste-centric parties. Vote bases correspondingly evolved to that extent. Therefore, we may have a system which thoroughly contributes to instability. We will have a party with 3% votes with 9 seats; 3.5% votes with 11 seats in parliament and then will be appealing to our own community or caste asking for those kinds of votes. Today, the position of the 1970s may not be valid. I have no hesitation in complimenting the Election Commission, particularly in the last 10-12 odd years. The other issue of electoral reforms which we thought of at that time was how to stop booth capturing. Successive Election Commissions failed consistently.

Even in the early 1990s, my own impression was there was a lot of talk on these issues, but eventually, the micromanagement of the booth had started in the last 10-odd years. That is where if I see a single greatest achievement in this is the Election Commission has now broadly succeeded in preventing booth capturing in India. That’s the experience of the last one decade and I think that is the most important electoral reform, which if you ask me, has taken place. Harish (Salve) asked why corporate donations were not legitimised. Of course, they were already legitimised; I had amended the law to that effect. You even get a tax rebate if you donate to a political party or a candidate by cheque. But my own experience has been that by and large, industry itself is reluctant for reasons of disclosure and makes adequate donations by cheque. We have the Election Commission intervening. Another minor success has been in publicity and posters, which were gradually reduced.

The misuse of government machinery and civil servants in elections was also an area where some improvements took place, particularly when a number of them were put under disciplinary control of the Election Commission during elections, or at least were transferring or suspended during that period. I think as politics has evolved now, there are three or four major challenges, which are aberrations. I see the first one as the most serious threat to Indian democracy. Politics is a reality; it wields huge amount of power, influences decision-making; governance and policy depend on that. The stature and quality of men manning elections is far too inadequate. There is no nexus between that stature and the kind of power politics. Why does that happen? The panel mentioned criminalisation; I find that in the last two decades, not so much earlier, there is a social sanction attached to a caste criminal. Therefore, in states where caste polarisation has taken place, this social sanction to a caste criminal has increased. That is why you find being a criminal itself per se is no disqualification. I must say that the 2009 elections carry a slight note for optimism as criminals by and large, lost even in UP and Bihar. That is the first election in India where it has so happened; otherwise we have a greater success rate of criminals rather than non-criminals! The debate as to how to debar them has been going on, whether charge-sheeting them or framing of charges is enough. Look at the politics of Tamil Nadu, Andhra Pradesh, Uttar Pradesh; I’m just naming two or three states where the level of political vindictiveness is also very high against the opponent. All one has to do is to put a charge-sheet; police being a state subject, the debarring would take place automatically. And if one has a strong enough charge-sheet, the framing of charges is automatic. One suggestion which had come at an all-party meeting convened about 7-8 years ago failed to achieve a consensus on this. Define a category of heinous offences. If one has two charge-sheets of heinous offences and charges are framed, the disqualification takes place from conducting the elections. One may be an aberration or vindictiveness but if you go through this process twice over, is it a fair enough basis to start off with? I think the real threat, even more than criminalisation, is today from money power. It is not the kind of money and issues which were taken up to have a ceiling or not have a ceiling – state funding is no answer. One can fund a person to the extent of Rs15 lakhs, but his actual expenditure can go up. State funding ipso facto will not curb that actual expenditure. We have legitimised political donations but the donations in other shades of money are still taking place. I think there are four areas of governmental or business activity that have become huge contributors to these aberrations of politics. These are real estate, mining, private educational institutions and liquor.

Moderator: If I may interrupt, when you were the minister, most of these issues of caste, criminals and criminalisation were there. What did you do when you were in government? What obstacles did you face?

Mr. Arun Jaitley: I will respond to that; let me complete this first. I have been associated with elections for almost three decades and have seen that at least in the last one decade, there has been a quantum jump in the kind of money that we see in some areas, being collected.Maybe one area is an exception; it is almost now linked to the development index of most places. If one goes to Bihar, Madhya Pradesh or Orissa, the expenditure is still far less. But if we go to Andhra Pradesh, Karnataka, Tamil Nadu or Maharashtra, the expenditure is huge. Most of the money comes from these areas. These are the kind of people who control the power. Therefore, they ultimately get elected, they have an impact on governance and that is when the quality of poverty stems down. What is the answer? What is to be done?

There are several things that have been done. Take for example, legitimising corporate donations; I remember Mr. Gill speaking to me as a CEC on power being transferred from the state government to the Election Commission to deal with officers during elections. Or for that matter, restricting the size of council of ministers – there were several areas where this was done. We made an unsuccessful effort even in the matter criminals by saying that an individual would get disqualified if there was a charge-sheet with two heinous offences. But we did not get the all-party support and therefore Rajya Sabha could obviously not have cleared it.

Moderator: Obviously, the reason for this getting held up was because there is a process of law; it takes inordinately long.

Mr. Arun Jaitley: But let me tell you; the question to which at least I have not been able to find an answer even today, and I don’t think any amendment to law would be adequate, is how to deal with crores of rupees being spent even for a legislative assembly? Mind you, the main area where the money is being spent is no longer on publicity, rallies or meetings. It is actual distribution of cash and perhaps in kind. If we have an amendment in law, file returns and so on; all those formalities will be completed. Our law, prosecution or Section 171 as Mr. Mendiratta put it, is completely inadequate. Now we obviously can’t empower the returning officer to disqualify somebody, because in a state like UP, we will find half the candidates of the non-ruling parties getting disqualified. We obviously cannot empower officers to that extent. I think that is a decision or a discipline that political parties will have to inculcate. And parties are finding themselves inadequate because the temptation of ‘winnability’ gives rise to fielding people who are going to resist that kind of reforms.

Moderator: There is good money and there is bad money. Good money is probably coming from companies like Tata but bad money is that which comes in the hope of a quid pro quo; that’s what is corrupting this process; that you pump in this amount of money to bet on a candidate in the hope of getting certain perceived benefits in return and that’s what is subverting the process. Mr. Venugopal, can anything be done, any law that can be brought into to nip or chip away this?

Mr. K. K. Venugopal: I have a feeling that many of the big corporates fund all the major parties because they want to hedge their bets. The result is that they believe that they will get something in return, whichever party comes into power. Therefore, it is essential as far as the corporate donations are concerned, it is not a question of what is now present under the Act amendments; that is, one merely reports it to the Election Commission and thereafter it is an offence. The Election Commission has to put up donations on its website, in which case the public would know which company has donated how much. Thereafter, any of the watchdog entities will be able to find out whether there is a return. Today, we have the RTI; with that you would know whether you are getting anything back or not. I know a politician in Tamil Nadu, who, when asked to stand for elections said that he would have to spend so much money that he would necessarily have to recover it after the elections were over, although he did not want to do so. But here, there would be a quid pro quo; otherwise, corporates won’t fund more than one political party. They do so because whichever party comes to power, they will get something back. This can be found out only if the public at large know that such a donation has been made, how has been made and then find out what licenses, leases and contracts that company is obtaining.

Moderator: The amount put on the website is about all kinds of money. A lot of underhand or black money comes in. Mr. Krishna Murthy, if you were the CEC today, what would you do about this?

Mr. Krishna Murthy: Although the session is on the electoral design or election system, I think we are talking about the money power in politics. It is very unfortunate that money power is becoming more powerful and instrumental in the conduct of elections. I would certainly agree with Mr. Harish Salve’s view that there is no point in having a ceiling that cannot be implemented. But if you want me to talk about the electoral design or the electoral system; I would like to do so, as that is the main text of this session. There is one measure in this country that can bring about a partial remedy to some of the ills such as violence, corruption, criminality, the judicial delays and so on. In my opinion, the electoral system we have needs to be immediately changed. The electoral system is of two kinds; one is a structural system, the other one is a procedural system. The structural system we have is the ‘first-past-the-post’ system, which enables the rich and the powerful to get elected easily because they only have to get 20% of the votes; one doesn’t have to get more than 20-25% votes to be elected. In each constituency, there is a majority caste or community or linguistic group which is able to influence and send its representative. In fact, it is for this very reason that the ‘first-past-the-post’ system is responsible for proliferation of political parties. It is again, this very reason that permits criminal elements to get easily elected. In my opinion, the ‘first-past-the-post’ system should go. Unfortunately, we inherited this from the Commonwealth legacy and most Commonwealth countries still practice this. It is okay in a country where there is social unity and not too much of divisiveness operating in a society. In the pluralistic society that we have, the ‘first-past-the-post’ system should go. What is the alternative?

There are plenty, whether it is the list system or proportional representation. In my opinion, the government should first address itself to this change; have a national debate, arrive at consensus among the political parties and bring about the change. If this first- past-the- -post system does not go, we are going to go down the drain. I have serious doubts about the unity of this country because forming political parties has become very lucrative. We have a thousand listed today and I’m sure it can easily go up to 1,500 because it is very lucrative to have two or three representatives in the parliament or in legislative assemblies. For heaven’s sake, let the government take this seriously.

The second issue is about the procedural part. We have been able to achieve substantial improvement in the procedural part, but there are many areas where we have suggested reforms. Unfortunately, these are languishing in the cupboards of the Government of India since 2004. There is not even an attempt made to convene an all-party meeting to discuss these issues. If those political parties in power and out of power don’t see the seriousness of this issue, I am afraid electoral reforms will only be in paper. In my opinion, the most important change is the structural design of the electoral system that needs to be changed. Secondly, we have made some recommendations to the government, but there has been no response whatsoever. I do not find a single political party taking the issue of electoral reforms seriously. I think they are doing a great disservice to the posterity of the nation.

Moderator: Mr. Khilnani, you have been in the north-eastern states and you know how the election system works there. There is a suggestion Mr. Krishna Murthy made, to move away from the first-past-the-post system to proportional representation. Do you think it will work better?

Mr. Sunil Khilnani: I will just make a brief comment on that but I wanted to try and say something about the general title of the session, which is strengthening Indian democracy. Electoral systems are always debatable. They are always argued about; there is no perfect electoral system. We already have an interesting situation where we have three tiers of the political system. We can actually engage in experimenting with different electoral systems and we could try in parts or levels in the country and see how they work. This idea that we have to somehow adopt in wholesale a new system is not only unlikely, but also not very practicable. I think one could certainly experiment with different forms of electoral system at different levels. But Mr. Krishna Murthy mentioned the proliferation of parties as being one effect of the first-past-the-post system. I just wanted to start with that point because I think that links to something more general about political parties and the party system. If we are talking about strengthening of Indian democracy, elections and the electoral systems are only one part of that. I think one of the reasons why we are seeing proliferation of the parties is not just the electoral system but also the fact that the parties themselves don’t have transparent internal mechanisms for advancement. So they lack internal democracy, often the top position in parties is decided by very opaque procedures. Therefore, if you have young aspiring politicians, the best way of dealing with the situation is to break away and start your own party. That’s the only alternative one is left with. It seems to me one very important aspect we need to focus on is the state of our parties, their actual health. That’s going to be crucial to dismantling of the Indian democracy. It would be impossible to imagine the contest that occurred last year within the US Democratic Party between Obama and Hillary Clinton happening in the Indian political party. The parties would have immediately split. The idea that one can contain such intense contests within a single party is inconceivable in the Indian system. I am thrilled that we have that kind of political parties where there is kind of an internal competition that allows leaders and leaderships to emerge; we will face this problem of unstable parties and therefore unstable party system. That’s one general point I wanted to make.

The second general point I wanted to make about strengthening of democracy is we have seen in this last election, and I think we continue to see the growing role of the civil society in monitoring organisations’ assets and so forth. They are really trying to tag and follow candidates, their performance and how they gained their wealth. This is going to carry on happening. At one level, it is very good that this is happening but it is also something that we need to foresee. It may raise real issues in the coming years because unless these organisations can maintain impeccable independence and not appear to be biased, it is just going to add one more level of confusion and messiness in the whole political arena. I think one thing we need to be thinking about is what kind of independent monitoring agencies do we want to have? What is going to be their relationship with such things as the Election Commission? Do we want purely independently-funded organisations and if so, how is their independence and their non-biased aspect to be maintained?

The third thing I thought I would mention in terms of strengthening our democracy is that we had this decade of the 1990s, which has been described as the second democratic upset, because of this great rise in participation, particularly amongst the lower orders and so forth. But I think we may now be seeing a plateauing of participation rates. Certainly, in urban India amongst the educated middle class, we are seeing even worse than a plateauing – we are seeing a dip. That seems to me to be actually an indication of the coming trend and that is something we need to be concerned about. For example, this election in April and May, there were very active campaigns in Mumbai to try and get out the urban youth to vote. It completely failed. There were dismal rates of participation by the urban youth and that has been repeated again in the state elections in the urban parts of Maharashtra. This may be an early canary in the wind of how this may go. That is something which we should be concerned about. Are we getting a whole class particularly of younger Indians who are somehow feeling so alienated or so uninterested in the political system that they are not willing to be enrolled?

Fourth, about strengthening of democracy, we have been very concerned and are very proud of our electoral system and of the way in which power is won in India. The power to go to the polls has to be won through the vote and that is a great achievement. But it seems to me elections are the only one part of the democratic system. While we have been very concerned with winning of power; we have been rather unconcerned with the exercise of power and the accountability that the exercise of power requires. I think this is something we need to use both our eyes and view it a bit more stereoscopically. We should not just focus on winning of power and the procedures and structures for achieving it in the most transparent way but also on the use and exercise of power and how it can be made more accountable. That, in turn, ought to feed into whether or not one can win power again and to establish a connection between performance and electability or non-electability to make that much more a part of the public debate. These are the four general points I wanted to make about strengthening of democracy.

Moderator: There are two points which I would pick up from what Mr. Khilnani said about proliferation of parties, which are breeding like rabbits. Part of it, I guess, is because it reflects a fragmentation of our society, with caste-based parties that have come up. The other point that he spoke about was that lack of inner-party democracy does not allow younger talent to come up, leading to frustration and younger leaders breaking away and trying to make their own fortune. Mr. Jaitley knows political parties better than most of us here. In big parties like the Congress, and now even in the BJP, it would appear that inner-party democracy is weak. If that in turn leads to this mushrooming of parties with nobody having a single national mandate, that does lead to corruption, and to small petty payers bargaining for big things. I wonder what you think about it.

Mr. Arun Jaitley: I think both will lead to a point which I wish to reiterate and re-emphasise. The post-1991 scenario saw a kind of an empowerment which had its impact on politics. But the impact on another aspect of politics was adverse. All post-1991 parties which came up are smaller groups; most of them have a caste support base; most of them have attempted caste-based or religion-based alliances and most of them are eventually led by individuals belonging to that community. The next impact has been that succession in that party goes through the family. Once the identity of the head of the party is established, then it is he or his family that goes through. This has had an impact even on other parties, which were post-1991 caste-based parties; the demonstration effect on that has been palpable. We have seen it in Kashmir, in Punjab, Haryana that have thrown up parties where the leadership is virtually controlled by a family. I remember Mr. Charan Singh once saying that the difference between the West and us is, there, parties elect the leader and here, a leader creates the party. In effect, the crowd around the leader becomes the party; that’s been the post-1991 phenomena. It has both these elements which you just mentioned. It is an element of greater fragmentation and it also has an element of structured political parties in India getting reduced. Even amongst the structured political parties, dynasty rules as against merit, and caste as against any socio-economic programme; these are the consequences that follow out of this.

Now the danger therefore, is when we make a structural observation as Mr. Krishna Murthy has suggested to this; the political parties in India will be the party of a particular caste or religious group and who will try to get a share in the pie. Therefore, whereas this was conceivable in the 1970s when this idea was thrown up, through the 1990s, I am not so sure how workable this will be in India because it will lead to a further fragmentation. We then would have alliances and coalition straightaway between political parties of this kind, leading to a larger instability. I agree with Sunil when he mentions that all this has led to inadequate amount of inner-party democracy because ultimately, it is just the one man on the top whose authority one has to then question. Even if younger faces do come up, it is only those younger faces that are acceptable to the person or one family on top. They are not younger faces coming from grassroots. As a result of this, younger faces coming up are the sons of some established political figure; they are not people who topped their universities and are of some exceptional merit, capable of making a contribution because of some programme. The only effect visible is that – and I say this in a lighter mood – when younger people come up after elections, for the first two days on television, I see a lot of them and thereafter I never hear them speaking in parliament or making any impact. That is the kind of younger people who have come up. I think Sunil has rightly pointed this out. De-structuring, if I can use that phrase, of conventional political parties in India, their identity is getting identified with caste, the leadership is getting identified with the family and it is across the board. So is it safe – I link it to Mr. Krishna Murthy’s point – now under these circumstances, to think in terms of a structural switchover?

Moderator: I wonder what you have to say.

Mr. Krishna Murthy: The consequences that he mentioned are in my opinion, the consequences of the present system. In my opinion, if we change the electoral system, for example, one of the alternate systems could be a person getting 50% + 1 vote being elected. In that case, all these caste or community divisions can be overcome. They have to come together as they will be forced to. Take proportional representation or a list system where a political party can give a list of people so that people indicate their preferences so that they have a choice. People will elect at a national level. For example, in Palestine, where I had gone as a representative of an NGO to watch the elections, 126 members are elected. 63 are elected on the first-past-the-post system; the remaining 63 are elected on a national basis. There is a long list of candidates given by the political party but they are voted by the entire country so that nationalist-minded people are elected. The present system does not allow nationalist-minded people to rise. Edmund Burke said long ago that when one elects a representative, one should elect a person who will represent the constituency, but when there is a conflict of interest between the constituency and the nation, one ought to elect a representative who will represent the nation. The present system represents not even a constituency, just a community or a caste. When a person cannot represent even 20% votes, how can he represent 100% of the people? How can claim to be a representative of the people? This is where the fundamental defect in our system lies, which has to be addressed. I am not saying that proportional representation or the list system is the best. We have to find a system that is acceptable to the nation and its ethos, culture. We have to find, evolve, discuss with people and arrive at a solution. But I am certain that if there is a change, the democratic experiment in this country will succeed much better.

Moderator: Maybe nobody in our structure will get in then.

Mr. Krishna Murthy: That’s right. For example, we have 10 people standing for the elections. If they don’t get 50% of the votes, the top three will again go for a second round of elections and be assigned preferences. Whoever gets more than 50% in the first preference gets elected. It may be expensive but it is necessary in the interest of the unity of this country.

Moderator: Mr. Venupgopal, do you think it is viable or is it worth going this way. The problem really is that there are at least 6 alternate methods of election to first-past-the-post and in the Indian scenario, with a tremendous amount of illiteracy I do not think any one of them will work. But the question is how can we reduce the negative aspects? I think the proliferation of the regional parties is really having a serious effect on the federal system. The national parties contest and it is they who invariably have the majority of seats at the centre, but do not sufficient seats to form the government. Therefore, compromisers and regional satraps step in and we can see the clout the regional parties have both in grabbing ministerial posts and also getting their regional policies implemented. The result is that the manifesto of the political party that actually governs at the centre, which involves various policies like foreign policy and domestic policy, stand subverted. Why? The reason is that as far as the regional parties are concerned, they have a totally different agenda. We have seen regional parties pulling out as a result of which the government collapses and the country goes to the polls. Therefore, I think it is time that we seriously consider as to whether the national political parties alone, i.e. the recognised parties, should be permitted to contest so that the contest is reduced to 5 or 6 political parties. The regional parties stick to regional policies. Here, there is a writ petition which was filed in the Supreme Court, which dismissed it. Thereafter, a gentleman by an interesting name of Eluscent Rajendran stepped in and filed a review petition. The Supreme Court reviewed his statement, which is very rare, and restored the petition, which is now going to be heard. But of course, the judges have expressed a view that this is not for us but simply wanted to examine the whole issue as to how far in a federal set up, regional parties would totally subvert the policies of the central government. This is one aspect.

The second aspect is that we have been throwing up our hands in so far as criminals are concerned. I have statistics with me. In the last Lok Sabha elections; there were 93 persons with history-sheets. One among them, who was elected from the Phoolpur constituency, had 150 criminal cases against him. I don’t want to name him but he was elected. Being gangsters, dacoits and criminals, such persons will ensure that trials against them will never be held; they see that the witnesses are suborned and threatened as a result of which the case is adjourned, the witness does not turn up for 6 months at a stretch. Do we have a solution?

Moderator: Are faster courts a possibility?

Mr. K K Venugopal: Criminal trials go through two stages where there is an application of judicial mind. One is when key witnesses have been produced by the police investigation. Then they say that he can’t be proceeded against, he fails; he has got a right to go for a revision. He also has the right to get the whole proceedings quashed. Now if they are ready to proceed against him, one finds the judiciary has applied its mind at two stages or more than two stages. Then one has to wait for a conviction, which may never take place, because it is postponed infinitely because of the reasons I just mentioned. I think this should be considered very seriously. I am referring to all charges filed and cleared earlier to the elections. Knowing our people, they will foist cases at the last minute. Thereafter, as far as this is concerned, when elections take place, a year’s gap is available for him to ensure that he gets the whole thing quashed. If he is unable to do it, the mere tendency of the charges withdrawn for 15-20 years cannot be taken note of. There is also another small aspect that I want to point out, which is about the negative vote. A negative vote has become totally innocuous for the simple reason that the voter has to disclose his identity. There is a writ petition already pending referred to a larger bench but the question is: as far as the negative vote is concerned, it can’t be incorporated as a button in the EVM with secrecy. But I would go a step further. When people who may be criminals, may have bribed their way into legislatures get elected with 20% votes, why should we not have red buttons against every name adjacent to the black button? If we do not want a particular candidate, press the button against him and if you find that the negative votes are more than the votes he has obtained, in which case he is thrown out. Therefore, I believe there should be a method by which one can vote against a candidate as well either with a button which says ‘not for anyone’ or against a candidate; a criminal will never come up because there will be an incentive for the people to go to the polling booth to vote against the person.

Moderator: And ensure that the red button votes, only if you are motivated by the fact that because he is a criminal, he is pressing it and not because he belongs to the BJP and Congress or vice-versa.

Mr. K K Venugopal: No.

Moderator: It could be only one vote that need not be ‘None of the above’; it can be a negative vote against a particular candidate.

Mr. K K Venugopal: And a candidate who has not gone to his constituency at all or who has used his power for acquiring bribes should get a negative vote.

Moderator: Can it be done?

Mr. Krishna Murthy: Yes, theoretically, it is possible but in practical implementation, we have to educate voters about the implications of these things, as many of them are ignorant or because of illiteracy, can press the wrong button. It has to be preceded by well-orchestrated training programme for the voters.

Moderator: When you talked about the young voters of Mumbai not coming out despite a campaign, I would imagine if this option had been there, many of them would come out.

Mr. Sunil Khilnani: I don’t know but I do want to come back to this question on proliferation of parties; it seems to me that it is going to be a fact of life. Regional and other parties are going to stay proliferated, particularly if over the next decade or more, we are going to see the creation of a new state and another induction of new political party coming up. We have to deal with that party; we cannot wish it away saying that it should only be a national party. We have to make the political party act rationally rather than as asset-picking companies. We have to give them the kind of incentive and create a structure in which they can act. That requires imagination and institutionalisation; we need to think about it. Given the nature, how difficult it is to cheat political representation and quality of our leaders, low level parties and regional parties are going to be the very important aspect in maintaining dignity in the system. One thing we haven’t addressed is the fact that it is not the urban young who are not voting, there are many rural folks who are actively disenchanted with the political system and have taken to arms. That is a very large phenomenon. That is the sign of the illegitimacy of the political system and the party system is in question, something we also have to address. It’s not all about getting the right electoral system for them; it is about creating a legitimised structure where they want to participate and where they have an incentive to participate.

Moderator: Mr. Jaitely said that electoral reforms are not static; it is a process. I want to revisit one of the reforms that have taken place. Mr. Chawla and Mr. Quraishi are here, as is the former CEC. One of the things that we have done to reduce money play in elections is to sanitise them. We have also sanitised them by banning posters and wall writing, which I feel are cheaper ways for a candidate to communicate with his constituents, rather than going and buying media space on television, newspapers and other systems. While defacing of public property is not desirable, I wonder if there can be regulations that can prevent defacing of property and yet devise a method that is much cheaper. Anybody who goes past will see that slogan, wall writing or poster unlike where one has to have many slots on televisions to ensure that when people watch TV, the concerned candidate is seen on that. I wonder if you have thrown the spanner about hyper-sanitation of election. It has also taken away much of the colour, though that is another matter.

I think it is a small measure, I think it is possible; I wonder what the panel has to say about that?

Mr. Krishna Murthy: Theoretically, it is possible. There are countries where poster sizes are specified. For example, in Zimbabwe, one cannot have a poster beyond 4 feet by 2 feet. Some specified measurement is given. Invariably, there are countries where electoral announcements, electoral publicity may take place in important specified areas, not in any hall or any particular place. There are specific areas of public reading and so on. Even in ancient Greek cities, they had this practice of public newspapers and items for public reading. It is theoretically possible but in a country where we have so much of illiteracy, is it going to be accepted by political parties?

Q: We could go to Kashmir or Calcutta and tell them we will prevent all posters and wall writing as we want Calcutta to be absolutely clean. Come elections, we again blame the Election Commission, asking why the EC does not allow posters to be pasted there. In fact, it is our law that says no to posters and wall writings. Why don’t we heed our own law?

Moderator: It would be a good idea if we throw this open to the audience now. Mr. Jaitley too wants to respond to this.

Mr. Arun Jaitley: Election is a festival of democracy; elections involve communication; they deal a contract between the political parties, the candidates and the public. Some kind of material publicity in an election, which can be disciplined and controlled, is necessary. Municipal cleanliness and other local laws or rules of ground, let’s not put up any form of publicity and therefore everybody hails it as a great step. But elections won’t stop, and neither will communication. The direct effect of that has been that instead of going straight to the public through publicity materials, candidates and political parties started giving advertisements, which was a legitimate payment to the newspapers, in order to communicate; communications will take place. The media industry then devised a new methodology, particularly in the last 5-7 years, by presenting a media package. One couldn’t have a pamphlet, poster or banner; advertisements were too costly, and there are demands for black money. In some states, at least every newspaper or a large number of newspapers, local cable channels, television channels have almost started coercing candidates and political parties for those media packages. The effect of sending election campaigns underground is that we have illegitimate forms of campaigns that have come up. Let us restore the normal methodology of elections. We can clean up the city five days after the elections, but let municipal cleanliness not be a ground for subverting democracy to that extent.

Mr. Quraishi: I am reacting only to the last point of the debate about posters and banners and extensive media. In the earlier session, I had mentioned that every problem leads to a solution and every solution creates a problem. This is one of the problems that have been created by one solution we have followed. Although, as Mr. Gopalaswami pointed out, basically it is the local laws. Though it is we who say that they have to be implemented in its spirit, but confronted with the phenomenon that Mr. Jaitley mentioned, it is a fairly serious problem that he has noted that it is increasing. At one point of time, Mr. Gopalaswami subsequently had been toying with the idea of going back to the old system because black money is being fed into big media. Most candidates have no power to buy this media, so the least they can afford is wall-writing and posters. We can find a via media in the meanwhile, till we come to a radical solution of going back. Things like banners do not cause permanent damage, because they can be removed the next day. A leaflet or a person going around in a bicycle or a cycle rickshaw, are cheaper media of communication, which have to be brought back. At the moment, that seems to be the solution even if it is radical.

Mr. Arun Jaitley: Since it involves the media, it is not just making things more expensive, it is also corrupting the watchdog. Let the Election Commission or one of the media organisations do a study; those media organisations that were honest and did not ask for packages, ‘only’ hiked advertisement rates for political parties and candidates, five to ten times. The Election Commission has banned publicity through posters and other materials. I am now categorised as a ‘monopoly’ class and therefore, for advertisement for commercial entities and political entities, the difference is now 5 to10 times more.

Mr. K J Rao: FAME is thinking of having an exclusive session on the topic of media sometime in the first week of February in Delhi. I think we can postpone this discussion as it a very serious matter. I was in Andhra Pradesh and have seen the amount of expenditure on media advertising on the news page. In every newspaper, there is no news except the greatness of the contesting candidates – nothing more than that. The front page till the last page is full of ‘only’ the greatness of the candidates. Today it is a bi-party affair, tomorrow it may be X party and even independent candidates, all touted as ‘great’ with people not knowing whom to vote for. This is a very serious matter and my colleagues would all agree that this by itself merits a serious discussion in an exclusive session, because the media is a pillar of democracy and is supposed to play a very important role. It can take one to the top and equally, dump someone in the bottom.

Moderator: As I said, it is corrupting the watchdog and there is a fallout. Therefore, reforms are static and I think this is one reform urgently needed. Mr. Bhure Lal, what do you say?

Mr. Bhure Lal: Article 324 conducts and controls superintendence of elections. What is preventing the election commissioners and the Election Commission from proceeding against those parties that are adversely acting against Article 324, especially regional parties and parties like MNS?

When it comes to immunity from criminal acts, does the recent MNS attack or the Supreme Court judgment on Jharkhand Mukti Morcha need a review?

The Election Commission is outside the control of executive and government. Are you happy with the present arrangement as far as the appointment is concerned?

Mr. Krishna Murthy, I agree with you sir, if we have to be in democracy, we have to be in a majority, at least 50% + 1, otherwise we are groping in the dark. The tendency of corporatisation and communalisation cannot be prevented. Democracy, I think, is a myth in this country, although I am sorry to say that. A person who gets 7% of the vote of the electorate can be elected. This has happened in several places. 99% of the MPs sworn in are those who’ve got less than 50% votes. In our democracy, the best people are gravitating to the bottom and the worst are rising to the top. A person like Phoolan Devi wins elections, while Dr. Manmohan Singh loses elections. Abraham Lincoln must be turning in his grave, because Indian democracy is all about “buy the people, off the people and far from the people!”

Mr. Krishna Murthy: As far as your first question about criminalisation is concerned as to what could be done by the Election Commission, I believe that there is a solution. Section 29 (A) of the Representation of the People’s Act requires every political party to have its objects and its constitution in accordance with the preambles of the Constitution of India. If it fails to do so, it will not be recognised as a political party. It will also not get a symbol. It is open to parliament to amend Section 29(A) and also introduce as part of the objective of any political party that it shall not give a ticket to any person who is facing serious criminal charges, which are set out in Section 8, and therefore it is not necessary that they should be convicted and disqualified under Section 8. The mere fact that the political party that is recognised and allotted a symbol should be enough to prohibit it, by its own constitution, from giving a ticket to a person who has a track record of a series of criminal offences, which are pending, but which will never be heard because the witnesses will never come forward. I think in that event, we will be able to achieve this purpose without even amending Section 8, by making the mere pendency of criminal charges a ground for disqualification.

With regard to Article 324, I believe the Supreme Court has confidence in the Election Commission of India as against every other organ of the state, which is a very good thing. You will find judgment after judgment, starting with Sadiq Ali in 1971, ensuring that the Election Commission is given vast powers and they have added more powers and even ensured that so far as the declaration of assets etc. are concerned, the Election Commission will ensure that it is all adhered to. In which event, I would assume that as the Chief Election Commissioner has been protected by the constitution; his independence is totally guaranteed, he cannot be removed other than the same process as is applicable to a judge of the High Court or Supreme Court. Perhaps the same thing should be done for other election commissioners also and as it is they have been given certain powers.

Appointment I believe should be by an independent body. We are thinking in terms of the judiciary per se that the system of appointment has to be changed. I think all these are on the anvil but I believe as far as the appointment is Chief Election Commissioner is concerned, considering the importance of the post, the need for total impartiality, independence and autonomy from government, should be or it has to be by the Prime Minister, the Leader of the Opposition, the Speaker and one or two other really independent bodies, not the executive alone, which has the voice. We very well know the tendency of any political entity is to ensure that whatever power he exercises will only be for his own benefit. But I should say that judges in the US, the election commissioners and the Chief Election Commissioner, after their appointment by the Supreme Court believe that they will fight with the Republicans or Democrats; they may be liberal or conservative, but actually they are totally independent. Therefore, I believe that it should not be the executive alone which should appoint these functionaries; it should be a mixture of independent bodies.

Mr. Sunil Khilnani: About having a 50% + 1 majority, in a country of our complexity, scale and size, such a majority is impossible. All elections are a form to achieve chief political representation; all political representation is a form of fiction. The question is whether that fiction is credible or legitimate and that’s what we need to be working on. 50% +1 is some magical figure that would endow legitimacy. Lower majority figures can also be held to be credible and legitimate if the system looks to be legitimate. It is a fiction, we can chose where the level is and believe in that. And that is what we have to make more transparent and credible.

Q: Is internal party democracy fundamental to electoral reforms? All of us have learnt what FAME has been doing. It has been conducting organisational elections in the front, of major political parties. FAME is in the process of writing letters to major political parties that they can involve them in conducting their own organisational elections. In fact, Mr. Jaitley’s colleague and a respected ideologue in the BJP, Mr. Vinay Sahasrabuddhe has gone to the extent of saying that the EC should be conducting elections of various political parties. My question to Mr. Jaitley and other panellists is: do you think it is a great idea for an organisation like FAME to conduct elections for various political parties or do you think EC probably could have a role in this?

Mr. Arun Jaitley: Any reform is welcome.

Q: We saw a great deal of debate about the Election Commission and various political parties’ intervention in the last couple of years. I would like to ask Mr. Jaitley his experience. Has he seen some kind of changes or has he found the Election Commission as critical as ever? We have seen both Mr. Gopalaswami and Mr. Navin Chawla.

Mr. Arun Jaitley: I don’t think we should discuss individuals; the larger issue is more important.

Moderator: To wind up, I think some great ideas have come up but the issue remains very complicated; I don’t think there are any straight answers.

Q: The last question pertains to the voters. We are talking about the powers of the Election Commission and the powers of the so-called policymakers. We are also supposed to address the voter as he is actually the person to be empowered. When we are talking about the voter, we should also talk about transparency. Right now, we have an issue of the voter putting his vote to elect his own leader. When we are talking about that, there is an intervention of EVM. When we talking about electronic voting machines, when we take the worldwide scenario today, we have a German court’s decision, issues of human rights, voter’s rights, transparency in the system, and whether the voters know of these.

A: Not really within the ambit of the discussion, as far as empowering the voter is concerned. Mr. Venugopal came up with an important suggestion of the red button.

Ms. Manjira Khurana

Arindam, thank you very much. It has been a great participative and illuminating session. It was a kind of a recap of what was said in the earlier two sessions. We thank Mr. Khilnani, Mr. Jaitley, Mr. Venugopal and Mr. Krishna Murthy. Dr. Dinesh Trivedi, who attended the earlier session, has promised that as a sitting member of parliament, he is willing to affix his signature to the recommendations which the house or the panellists here have given and is willing to take that forward in his individual capacity as a member of parliament without any party affiliation or donning his minister’s hat. We consider that a humble beginning and shall go along with that. I request Mr. Lyngdoh to come up on stage to present small mementos to remind each of our panellists to show how much we value their time and contribution and also request to place the same in their crowded mantelpiece in order to remember us and our cause.

We owe double thanks to Mr. Sunil Khilnani for joining the panel at very short notice. He just arrived into the country and came to this discussion and his invaluable experience is extremely useful to us.

We also thank Arindam Sengupta, our moderator, as moderators never have a very easy job especially when confronted with such luminaries.

FINAL SESSION

Ms. Manjira Khurana

I now invite on stage the Honourable Minister of Law and Justice, Dr. Veerappa Moily, Mr. Navin Chawla, Chief Election Commissioner of India who has always been in the public eye, Mr. Lyngdoh, Chairman, FAME and Mr. T S Krishna Murthy, Vice Chairman, FAME, Justice J S Verma, Former Chief Justice of India.

Distinguished delegates and friends, we start the penultimate session of the first seminar on Electoral Reforms. We have had three very exciting sessions and there were all kinds of suggestions, radical and rational. Everybody has been left with one question: ‘Where do we go now?’ We have some of the most eminent minds summing up the concluding session and we hope this is a baton we pass on to the next generation to carry forward, of course, with our help and support. I now request Mr. Navin Chawla, the Chief Election Commissioner to deliver his address.

Address by Mr. Navin Chawla, Chief Election Commissioner of India

Honourable Minister of Law and Justice, Mr. Moily, Justice Verma, our former Chief Election Commissioners, Mr. Lyngdoh, Chairman of FAME, Mr. T S Krishna Murthy, Mr. Gopalaswami, and my esteemed colleague, Dr. Quraishi, members of FAME. Having a look at the subjects of this seminar reveals that the discussions have been frank, especially with such eminent panellists. As soon as they have been put on paper, we in the Commission would like to study the observations and more particularly the suggestions carefully. In that, we hope that we will continue to have interactions with FAME. We all know Mr. Mendiratta who is a valued member, office bearer and also a legal consultant without whom we can hardly move a step because of his wide knowledge and his enormous experience. A lot of ground has obviously been covered. Dr. Quraishi spoke for the Commission and that would in effect summarise my views and Mr. Sampath’s as well.

I would like to strike two chords; one is on the participation of youth. I have travelled to about 30 campuses and sometimes I forget which city or hall I am in, because the questions that they ask contain so much emotion and passion in what they represent, and the need to be actively involved with the work of the Election Commission, that I think we in the Commission have to sit down seriously and see how we can harness their ideas. We are a very young country and if our 18-25 year olds are by and large going to be apathetic to the electoral process, would it really make for any meaningful thinking or representation by youth? It will be some time before they reach the age when they themselves can contest an election – in which case it would be different because it is still individual-based and not collective-based. It is because we received a good idea from the students at the Asian College of Journalism. Two young people stood up at the KIIT campus in Bhubaneshwar and spoke about the rights for the trans-gender and the eunuchs who did not want to be represented by either by ‘M’ or ‘F’ but as ‘T’ for trans-gender or ‘O’ for others. We deliberated this in the Commission and came out with a decision which has in a way given an identity to a million people in our country, who were seeking a path-breaking identity. It can gradually evolve into many other polities and countries. It came from young people. Maybe it has been deliberated over the past, maybe it was in our files, though I don’t know about it. I only know that it came from young people from two campuses and then we took it forward.

Another question that you would like us too to be engaged in is: how do we build our young people into a mainstream? Every time there are elections in the states or parliament, they are apathetic and say that they didn’t know the candidate, so how were they to be concerned? We have to think of how to draw 18-year olds more easily to our electoral rolls. Can we do it on campus? If they decide after six months, even though they may live in another city; if they would prefer to be ordinarily a resident in City A where they happen to be staying 3-5 years, a choice that they wish to make, can we make it easier? Can we involve them? Mr. Gopalaswami is here and his wonderful idea of booth level officers was visualised in the West Bengal elections and it has paid much dividends to us in helping to clean up the electoral rolls. Now, one government servant is responsible for 1,200-1,500 voters in that area; he becomes familiar with them and as a result, it helps incorporating 18-year olds up to a point, removing the dead voter. Basically, it makes our role more up-to-date and faithful. If we play a good role, then in my view, it is more than 50% of a good election. Because if our role is flawed to begin with, how can elections be anything near perfect?

Can we harness youth power in our campuses to help the BLO from his or her hostel? These are issues that we need to fully discuss, but it is also something to debate upon. If we do that and get our youth interested, we would have done a major service and become partners with young people. Presently, the only time one is likely to get to engage with them is when one meets them in their campuses and homes.

I’d like to say a little about those who are marginalised in our society. Justice Verma has always stood up for them and I would like to pose an issue. It is not an easy issue but I would like to ask society in general and perhaps the Supreme Court in particular, about the right to vote under trial. We have discussed it on more than one occasion in the past, but without any finality. As I said, we have been able to reach out to, or at least make an introductory handshake to about one million people of a completely marginalised section of our society. By the second method I have said that we hope that we can engage young people more vigorously. The third point that I am going to amplify is whether we can give a voice to the under-trial. From my Mother Teresa experiences, I know the plight of the under-trial in her home. Long ago, the then Chief Minister of West Bengal Jyoti Basu told Mother Teresa that there were women under-trials, they had children with them who had grown up in jail and there were some who had been under-trials for almost 60 years, i.e. their whole lifetime. They no longer have a face or identity; they are not members of society in any sense that we know of. It has always been in my mind to try and give them an identity. What I am going to propose is not easy, but it is worth debating. I have a solution; many adopted the Universal Adult Franchise; the article that provides every adult citizen who is 18-year old on the first of January to be entitled to be registered as a voter for election to the Lok Sabha and Vidhan Sabha, unless disqualified on the ground of conviction, corrupt practices, or non-resident etc. Section 16 of the Representation of the People’s Act, 1950 laid down certain disqualifications for registration as voter. Further, Section 11 of the Representation of the Peole1 Act 1951 lays down some disqualifications for voting, even if one is registered as a voter. Section 62 of the Representation of the People’s Act, 1951 mainly provides that every elector whose name is there on the electoral roll shall be entitled to vote unless disqualified for voting under the said Section 11. However, sub-section (5) of the Section 62 lays down that under-trial prisoners and persons under police custody shall not be allowed to vote even if there are duly entered in the electoral roll.

Here, I turn also to the Minister of Law and Justice, Mr. Moily. This denial of right to vote to under-trial prisoners and persons under police custody hardly seems justified when viewed in the context of the fact that the very same under-trial prisoners and persons under police custody are actually eligible to contest elections. On the one hand, he or she can contest in elections but on the other hand, he or she can’t vote. The right to vote is a basic right and the right to contest elections flows from that basic right. I am of the view that under-trial prisoners and persons under police custody cannot be deprived of this basic right. I am aware that the Supreme Court has upheld the petition in Section 62(5). But I feel the matter needs to be re-examined and we propose after discussion in the Commission and to examine it in all its aspects to pose this before the government.

There have been some important issues discussed and once again, the question of faith in the Electronic Voting Machine has cropped up. Without going too much into this, those who have doubts can bring a hundred machines from ten different states, any machine or machines of their choice and prove to us that they can be actually tampered with. So far nobody has been able to do it. We intend and propose soon after Jharkhand elections, to call them the third time should they want to come. Also, the matter is coming up shortly before the Delhi High Court and we will await the outcome. With these words, I would like to thank you for your patience and listening to me and thank the organisers for having indulged with me.

Ms. Manjira Khurana

Thank you, Mr. Chawla; we are the ones who have to thank you for sparing time and for your inspiration. Mr. Chawla was our original inspiration when FAME approached him and informed him about this seminar. He assured us and did us the rare honour of making us meet all the election commissioners, the deputy ECs and also assured us the support of the CEC’s office for organising this meet.

I now call upon Justice Verma, who began with the reform agenda and request him to wrap up before we come to the concluding address by Dr. Moily.

Summary Recommendations of the Panels by Justice J S Verma

I am grateful to have been called a second time by FAME to say something. Dr. Moily, the Law Minister, the present and former Chief Election Commissioners and Election Commission and distinguished ladies and gentlemen, what pleases me most is that in this gallery, we have all those who can matter in bringing about the electoral reforms that need to be enacted. On a more direct note, one of the main things I spoke about earlier was that while talking of electoral reforms, we have to accept that there is no political will. Political parties really do not want to make a change in the status quo, because it suits all of them. What next? I said in the morning that a winner has a solution for every problem; we are not losers and so that we don’t think of problems for every solution. Therefore, the participatory role of the people in governance in a democracy has really to be acquired. And how can that matter? There are people and institutions who wield some kind of public power; for instance, the judiciary interpreting the laws, the Election Commission entrusted with the duty of conducting free and fair polls – which is the basic feature of the constitution. Some of them are gathered here, have held high offices and now don’t want anything for themselves, except better polity, good governance transcending to the level of humane governance, which must be people-centric and owned by the people because it is they who must exert that kind of public opinion, which alone would bring about the change.

Why and how will the change take place? Apart from the fact that these institutions and people matter at the time of the elections, in the ultimate analysis, if at all the politicians are scared of anyone, they are scared only of the public opinion going against them. I am indeed happy that all sections of the society who can make a difference are here. I must commend this organisation for organising this very important event. About two-third of the present Election Commission is also present here, headed by its chief and the Law Minister, who represents the government and is concerned with making legislations. Mr. Mr. Arun Jaitley when asked to respond to a large number of suggestions on reforms, answered like a good lawyer that he is, and also the equally shrewd politician that he is. Very directly, he said any reform was welcome. I think that is the crux of the matter. What kind of reforms? If you ask me to summarise in one sentence the electoral reforms needed, I would say that reforms are needed to ensure what the constitution promised us.

Sometime back, I was asked to contribute a chapter in a book being published on constitution and the title I chose was: “Constitutional Philosophy – Promise, Practice and Prospects.” The electoral reforms that will realise the constitutional promise are not very difficult to visualise. Ultimately, the purpose of election is to find who the true representatives of the people are. Anything that will ensure that result needs to be done. We can debate over the extent to which it would have to be done. I have always interpreted and understood Article 324 of the constitution to be fairly extensive and that is the manner in which I tried to read it while I was in the court and that is also how I happen to be associated with many of those decisions. The idea is that if free and fair polls are a basic feature of the constitution, the basic structure is indestructible and the Election Commission is entrusted with the duty of the conduct of free and fair elections. Everything the Election Commission needs to do should be within Article 324. I think that is the way to look at Article 324. The judiciary and the Election Commission, have been empowered by the constitution to be two of the strongest public bodies. Of course, the media has come up because of judicial interpretation of Article 19 (1) of the right to know, which the media caters to. The constitution envisages the judiciary as the custodian of the rule of law, the Election Commission ensuring the true representative form of government and while the Election Commission fortunately continues to retain that credibility and I am sure with 2/3rd of the present Commission being here, I have no doubt they would carry forward that charge.

I am sad that to the other institution, to which I belong, has been in the news for all the wrong reasons in the recent past. There was a strong debate as to what needs to be done. What pleases me is we are retaining laws. Money and muscle power are the two things eroding the credibility of the returned candidates and therefore, the representative nature of our government. We are doing your best to curb that menace but a lot more needs to be done. How can we do that? What is that one trait that everyone in top position should have? I have some experience of administration too, apart from my duties as a judge, because I was bestowed the Honour of the Nation as the Chief Justice of the High Court and also the Chief Justice of India. If only we had the top person who is totally incorruptible at the right juncture, 50 percent of the things are automatically taken care of and there won’t be much of a problem in chalking out the other 50 percent. This impression of mine was reinforced after my retirement, after which I have been travelling more often and to remote places like down south in Kerala. One day a district judge had come and he made a remark which completely baffled me, but also confirmed this impression of mine. He said that the one who sits in the topmost chair in Delhi in our fraternity decides how one behaves in Kerala. I asked him what made him say that. I won’t share with you the details of what he said but he cited instances and facts that he knew.

How can we bring this about? If the governance is unsullied, by true representatives, if the people of this country are mostly good, why should not our representatives be good? Venugopal was citing figures of how many people have criminal antecedents. If those who should be answerable to the rule of law or those who are twisting the rule of law or the arm of law become lawmakers, what results can we expect? Ultimately, these are the elements that control governance. It is a very important link; during the hawala case, no one was finally held accountable. Because those who were entrusted with the authority to investigate and prosecute ensured that no one was held accountable. After I retired, some of the top leaders confided to me that they were already assured (that nothing would happen to them). This is what ultimately muscle power and the money power will lead to. Sometime back, a media report said that the figures for the total amount of black money in foreign accounts, from Indian sources, exceeds the sum total of the budgets of all our states. It is that money which funds elections and therefore, as a result, only those who can supply money and muscle are in the fray. Electoral reforms are needed to rectify this situation.

Transparency and accountability are two very essential factors for good governance. Sometime back a committee was set up in the United Kingdom headed by Lord Nolan which listed out the seven principles of public life applicable to everyone in public life. Transparency and accountability are two of them. Transparency is needed because of the people’s right to know so that they can enforce accountability. I am very disturbed when some people of my fraternity say that we are a different class. In a democracy, how can anyone be above the people? How can anyone be not accountable to the people who are the ultimate political power? The preamble of the constitution starts with “We the People”; we are not to forget the people the moment we assume office. These things are directly connected to the need for electoral reforms and therefore, everything must be done to ensure this. I will just end by saying this that the 1999 Human Development Reforms prepared by the Nabibullah Centre, one of the two great Asians, the other being Dr. Amartya Sen, did a lot of work in this regard but unfortunately, he died very young and much earlier in April 1998. The report is ‘Crisis of Governance in South Asia’ and the major factor identified in it is corruption. We find crores of rupees tied in bed sheets, which no one claims. Let trials, which are endless, go on, but why can’t there be a law to confiscate all such money immediately, as public money? Recently, we see media reports of a chief minister having earned Rs4,000 crores. In 1994, this person was supposedly an ordinary leader, the year I was in the Supreme Court. I am sure everyone knows exactly what the position is now. These kinds of things show the magnitude of the problem.

As I said earlier, I am an incurable optimist. This programme is a very welcome sign and I hope we are enlightened by its fire. Thank you very much.

Ms. Manjira Khurana

Thank you, sir. We welcome the concluding part of your speech that you are an incurable optimist. Probably, that’s what we all are and that’s why we have started this initiative. A few ordinary people have come together with a big idea. I now invite the Honourable Minister of Law and Justice, Dr. Veerappa Moily to give the concluding speech of this seminar.

Dr. Quraishi: About a year ago, a senior journalist was interviewing me where I mentioned some very good reforms that have been in the pipeline. I also showed him this booklet on electoral reforms. That was when he stumped me by saying that they had been seeing this booklet dated July 2004, for years. Some of the reforms spoken about had been in the pipeline for 20 years. He asked me whether I was thinking of framing it and putting it up on the wall for my grandchildren to see. I have been trying to find an answer. I am sure you have been a votary of reforms. This is your opportunity and we hope that you shall finally lead us to the answer to this question.

Concluding address by Dr. Veerappa Moily, Honourable Minister of Law and Justice

Respected Hon’ble Justice J S Verma, respected Shri Navin B Chawla, friends, Mr. Lyngdoh, Shri Krishna Murthy, Shri Gopalaswami, Shri Quraishi, distinguished delegates. It has been quite an interesting seminar as I welcome such debates. I am told that this is the first such seminar on electoral reforms. Mr. K J Rao and Mr. Bhure Lal approached me for this programme. I would like to state that I always believe in reforms. My approach to reforms is creative. We have stuck too long with this system; I think we should come out of that mindset and unless we do so, I don’t think we will set ourselves up into a reform trajectory. I partially heard the earlier panel discussion and also had the privilege of hearing Shri Navin Chawla and then Justice Verma. Navin Chawla told us that there are many things he had written down. But one thing I can tell you in the beginning is that many attempts have been made by various ministries and the government to introduce reforms. My feeling is that they were not holistic. They have been attempted as and when the contingency arose. I am for bringing out holistic reforms in elections. There should be a holistic electoral reform and the first problem is how to get it passed in the parliament. This is where I look for public awareness. A pressure lobby can be created among the political parties and citizens, compelling the parliament to bring about that kind of a holistic change in the electoral vote.

I think this seminar is an attempt to bring about that kind of a mindset or a change. Many a time, one finds that a person is entitled to vote. Not a person whose name is found in the electoral roll but the lakhs and lakhs of people, who are entitled to vote, but are not allowed to vote. Who is accountable for it? All of us belong to the electorate. This is a denial of the basic right in a democracy. I think we have not been addressing this question. There are two categories; one, they are disillusioned because they don’t want to come and vote, the figure may be 20 crores. Our system should tap those voters. There is no meaning in simply saying that in the old system, 50% voted and so on. Can our electoral system attract people to vote? Can our electoral system make all potential voters who are willing to vote, actually come and vote? I shall start with these two things as they are the basic things that can definitely make a big difference.

I won’t say much, though Justice Verma has said that the political will for reforms is missing. Actually, it is the people who have to have the political will then it has to percolate down through the representatives of the people. We may have millions of problems but there are millions of opportunities to make this democratic right work. I am yet another optimist who thinks this will happen. If there was no optimism, I don’t think our democracy would have lasted all these 62 years. I must tell you that there are two institutions still in the eyes of the people of this country have the highest credibility. They are: (1) Judiciary and (2) Election Commission of India. I must commend all those torchbearers who have occupied this Election Commission to have made it so. But we have greater expectations from these institutions. Fortunately, I am in charge of both here, through my ministry. With the blessings of Justice J S Verma, I have now drafted a bill which I shall show you. Before I sign the Judges Standard and Accountability Bill, I’d like to say that I have added more than what may have been dreamed of. I think we need to have a public figure, whether it is a politician occupying a ministry or representing people or even the Election Commission; I think the time has come when we should conceptualise the principles of standard and accountability and this is the basic thing which can make the respective machinery of the democracy constantly alert and vigilant to keep to their task. I do agree with Justice Verma when he said that the judiciary is the custodian of law. I do not entirely agree; it is the parliament that is the paramount custodian of law. We are in fact there to enforce law and interpret it. The Election Commission is the real institution in a democracy to hold fair and free elections.

Ultimately, what is important is to ensure the people of India that the rule of law will prevail and that all are equal. The question is: have we been successful in doing so? If so, to what extent, in ensuring the rule of law through these two institutions? How are we ensuring that everyone is treated equal under the law? If it is not happening, I think we need to work out methods by which these principles do work and the rule of law prevails in all systems in this country. These are some of the key things which I would like to say. Usually, we always say that caste, muscle and money power and corruption dominate the election scene, but it dominates everything; I don’t think elections are an exception. Some of us belong to a microscopic minority and many times feel that we are orphans in this whole process, even in the elections. Many a time we feel that we are orphans that there is no place for some of us. I should confess that sometimes we wonder why we should fight the elections if it is only caste, muscle or money power that is going to determine the outcome; ultimately the people will be disillusioned.

The idea of debate is to identify the methods to contain and curb the menace. One point on which I agree with Mr. Mr. Arun Jaitley is that if this kind of a platform is not provided to the people, other methods may be invented to reach out to the voter. One manner that Mr. Jaitley mentioned, though it has not yet reached South India in any significant proportion, but has pervaded North India in a big way, are these ‘election packages’ offered by the media. What he said is true, and it is not small money. The whole process of elections is subverted. It goes to the underground. If we don’t provide a transparent way of fighting elections reaching out to the voter, then they would indigenously adopt some other instrument, which would be more dangerous than what we have. I do agree this kind of a gala election with posters and everything but I think overregulation will definitely subvert the process of election. This is a matter which we need to address and find real answers.

I would like you to recall former Prime Minister Nehru who addressed the parliament in the case of Mudgal, a parliament member in Lok Sabha. That memorable speech is dated September 24, 1951 and I quote, “The question arises whether in the present case this should be done or something else (I mean making the person dismissing a member). I do submit that it is perfectly clear that this case is not even a case; it might be called a marginal case where people may have two opinions about it, where one may have bounced if a certain court suggested is much too severe. The case, if I may say so, is as bad as it could well be, if you consider even such a case as a marginal case or that one perhaps a certain amount of laxity might be shown. I think it will be unfortunate from a variety of points of view, more specially, because this being the first case of its kind coming up before the house, if the house does not express its will in such matters in clear unambiguous and forcible terms then doubts may very well arise in public mind as to whether doubt are very definite about such matters or not. Therefore, I do submit that it has become a duty for us and an obligation to be clear, precise and definite. The facts are clear and precise and the decision should also be clear and precise and unambiguous. And I submit the decision of the house should be after accepting the findings of this report resolve that the member should be expelled from the house.”

That is the kind of highest standard which has been laid down by our founding fathers. Essentially, the legitimacy of the entire system of government and the efficacy and effective working of the electoral mechanism based on the verdict of the people, which forms the basis of the propriety, if visited by unethical methods, erodes the faith of the people in the entire political system and ultimately destroys the very foundation of democracy. Many a time, because of deficiencies in the electoral system, some accident takes place. Can we call it the verdict arising out of that kind of an accident that happened during the course of the election, or just two days before? Can we call it a real verdict? During my tenure as the chief Minister of Karnataka, two days before the commencement of the first phase of elections, certain things happened, not in Karnataka, but somewhere in UP. Because of that incident involving a particular community, which was more than 10% in 108 assembly segments out of the state’s 224 assembly segments, I lost 108 assembly segments. It simply pulled the carpet from under my state government. It happened not only in Karnataka, but in Maharashtra and also in Andhra Pradesh at the same time. Three assembly segments were lost to a particular party. Such accidents can distort or rob the real verdict of the people. We need to find answers to this.

These are the basic questions. Such things can happen to the parliament. It can also happen that aberration and distortion may destroy the fundamental principles of democracy. In India for instance, violence and corruption are linked to electoral process. Yes, some of us obey the Election Commission’s orders; there are people who do not obey the Election Commission’s orders, cases are filed, our officers cooperate in finding and seizing money and liquor, but I don’t know what we, you do thereafter. Cases are not pursued, the guilty are not prosecuted. I think this is the area where the Election Commission will have to apply its minds. We must ensure that a person is convicted and it is not a mere rigmarole of election petition without any teeth in to these institutions. Of course, the judiciary takes its own sweet time – till the next term is over, they will not dispose of the case. I don’t think the judiciary addresses the question, and neither does the Election Commission. One only blames the politicians. Who is to blame in this game? The cases are not pursued. I have seen that they are cooperating with government. When I was the CM, we did whatever Mr. T. N. Seshan wanted but thereafter, Mr. Seshan faded away. I am not blaming him; that is the system.

Can we not make the system work? Even after the elections, we have to pursue things. Is there one instance where after such seizures, malpractices are exposed, where the Election Commission of India has pursued the matter, investigated it and disqualified any party or candidate? Are no instances at all? This is where our election machinery should function. Whatever support of law is needed, I can assure you of my support. We are ready to delegate adequate powers but I don’t think that the Election Commission is so disabled that it cannot enforce these necessary steps. If even these are not carried out, those who stand for elections or their political parties will not have any fear of law. In such a situation, we will be nowhere. The principal issues are two: one relates to the entire electoral process, from enrolment of eligible voters to holding free and fair elections in which there are no corrupt practices or no booth capturing, no rigging or use of violence to prevent voters from exercising their electoral choice or misuse of official machinery by the ruling party or the opposition party to influence the electoral outcome.

The second relates to corruption and criminalisation perpetuated by the political parties by way of collection of funds and use of criminal elements in elections some of whom have also entered the electoral fray. In the light of experience gained in elections during the last 60 years, proposals from different sources including political parties, eminent men in public life and deliberated in innumerable committees have been presented. You have reported about that book; I am prepared to take every word of it and enforce it. It is necessary to arm ourselves with all necessary laws. I would like to have a brainstorming session with the Election Commission of India or their representatives or some of these eminent persons, because after all, judicial reforms are an important part. I have already had a national consultation; I think the next consultation will be on legal education. I would like to have the third national consultation on electoral reforms so that we can brainstorm the issues and I am prepared to stake my position on that. Not half-hearted but we will go wholeheartedly to enforce it. Merely making laws will not take us anywhere; it is their enforcement, which alone will create the fear of the law. Unfortunately, in our country, we have no fear of law even though we have plenty of laws. We may suggest many reforms; and as a consequence, may make many laws, but ultimately the governance of those laws is more important than making the laws.

I don’t want to go into too much detail but must say that he who administers government by means of his virtue may be compared to the pole star, which keeps its place and all other stars are drawn towards it. When the ruler himself is right, people naturally follow him in his right course. If the governance is by men who are wily, the governance will naturally suffer. We have to keep in mind Pluto’s injunction. I quote, “The punishment suffered by the wise, who refuse to take part in government, is to suffer under the government of bad men.” This kind of awareness will have to be created among the electorate. If that is not done, I think any effort at our level will not lead us anywhere.

Finally, I would like to quote Edmund Burke, who about 235 years ago while addressing his electors in Bristol, spoke as follows:

“Your representative owes you not his industry only, but his regiment and if he betrays instead of serving you, he sacrifices it to your opinion. Parliament is not a congress of ambassadors from different hostile interests; with interest each must maintain as an agent and advocate against other agents and advocate, but parliament is a deliberative assembly of one nation with one interest, that of the old where not local purposes, not local prejudices ought to guide, but the general good resulting from the general reason of the whole. You choose a member indeed but when you have chosen him, he is not a member of Bristol but he is a member of the parliament.”

Each one of us, not only the political class, but every one of us many a time chooses to represent the interest of our own, which does not build the nation. I think this is the time when all our reforms have to direct to that. Ultimately, the nation is important; we are all here to build the nation. I am very happy that Mr. Bhure Lal and Mr. K J Rao chose to invite me for this great occasion. I indeed look forward to the proceedings and resolutions from the deliberations and can promise you that I will definitely listen to every word of reflection made right here and latch on to it effectively and fully. We should definitely look forward to that kind of an ultimate package of reforms in this day and age. Thank you very much.

Ms. Manjira Khurana

Thank you, Sir. I don’t think we could have hoped for more when the Minister for Law and Justice lives up to his name and promises justice and reforms. I think we have achieved more than what we set out for. We are truly gratified by the presence of the minister, the CEC and other distinguished panellists. Before we go to the vote of thanks, I request General Secretary of FAME, Mr K J Rao to say a few words.

Mr. K J Rao, General Secretary, FAME

Good evening all of you, Hon’ble Minister for Law and Justice, I have been much connected with the Election Commission of India for the last four decades. The booklet Dr. Quraishi has shown you was sent to the Government of India as early as in 2004. It contains minor amendments to some of the rules which the law ministry can do itself; it needs no consultation with anybody. It is not necessary to go to parliament at all. I would request the Commission to immediately pursue these minor things pertaining to these discussions. We are sure that the Commission will definitely be able to do it, is in fact, going to do it. I am also an optimist, not a pessimist and I am sure in the beginning of the next year, it will become a route and we shall be very grateful.

As far as the amendment of the Act is concerned, certain things will be accepted by all. There are certain amendments that can be enacted immediately. I request that those things be segregated, instead of clubbing together everything. Whatever is possible without the consultation of political parties should be pursued, as political parties are quite unlikely to agree. After segregating the minor things, we can pursue the debate for the other things. It is important that they take effect as early as possible. It will be most useful for the forthcoming important elections in the state of Bihar and Uttar Pradesh.

Good evening, Hon’ble Minister, my good friend Navin Chawla, Justice J S Verma, my very dear colleagues Mr. Lyngdoh and Mr. Gopalaswami, Mr. Quraishi and other distinguished members of the audience. We are coming to a close of the day’s proceedings; this is a very important session on electoral reforms. Today, the voting and the voting booth are considered internationally accepted instruments of political change. In 1934, we had only 39 electoral democracies; in 2006, we had about 120 electoral democracies, which have increased now. The effective functioning of an electoral system is linked to the political party system, constitutional development, laws of the land, people’s attitude, culture and so on. Some years back, the former president of Philippines had said, “Governments may come and go but the people remain; it is the majesty of the people power that we exalt when we could build functioning and free electoral systems.” The electoral reforms are not meant mainly for fair and free elections; electoral reforms are good for good governance and I think governments, whoever in power, should realise that electoral reforms are not merely for good elections, but also for good governance, which is so crucial to a good democracy. I would like to quote one of your leaders of the party who spoke in 2001 when we celebrated the golden jubilee of the Election Commission. I would like to stress this because she had expressed her view very categorically on electoral reforms:

“I would not be detracting from the occasion when I draw attention to the need for electoral reforms; the Election Commission itself has been making recommendations on this subject from time to time. I want to reiterate my personal commitment and that of the party that I lead to strengthening the electoral process in a comprehensive manner. I feel that we have talked enough on electoral reforms; the time for concrete action is now and we stand prepared to make our contribution.”

This was stated in 2001; I sent my recommendations on behalf of the Election Commission in 2004. Unfortunately, there is no indication of any action taken on those 22 recommendations that I had sent. All that we could understand was that some all-party conference was held, but it was not pursued. You said the political will has to come from the people, sir; you eloquently expressed the views of our first prime minister, Mr. Jawaharlal Nehru who said that the house should express itself that is the political will and I would request you to champion the Reforms Bill immediately, maybe after an all-party debate and discussions. Let the political parties; even if they don’t agree and even if they don’t pass the bill, let the citizens of this country know who are interested in the reforms and who are not. I would request you to take up this seriously and I have no doubts that if the proposed electoral reforms are carried out, the country will be safe for democracy.

As this is supposed to be the Vote of Thanks, first of all, it is my duty to thank Justice Verma who had been there in the morning session and later too, in the final session for taking his time to be with us to express his valuable opinion. I also thank the Honourable Minister for very categorically assuring that the electoral reforms will be taken up as a top priority. All the proposals are available with the ministry and some, as Mr. Rao mentioned, can be carried out within even 24 hours because they only require the approval of the minister for the amendment of the rules. Some may requirement of amendment of law and some may require the amendment of the constitution; one could possibly categorise these and take such action as deemed fit. You are sitting at crossroads; if you can bring about some of these reforms not only you will be doing a great service for your government but a great service for this country, for the posterity of the nation. I thank you for sparing your time to be with us.

I thank Mr. Navin Chawla and Mr. Quraishi for participating in the deliberations of the seminar; your association has been fruitful. In particular, I must thank Mr. Mendiratta and Mr. K J Rao, who have taken enormous pain to organise this because Mr. Lyngdoh, myself and Mr. Gopalaswami are not in Delhi and they have done all this themselves. They have really toiled hard to organise this seminar; I would like to compliment them. I would like to compliment Ms. Manjira Khurana for ably conducting the proceedings. She is a director from Air India and has been very committed to the cause of electoral reforms. I would like to thank her for conducting the proceedings today. Thanks are also due to Mr. Arun Malhotra who has volunteered to fund the mementos and printing for this seminar.

FAME may have fame, but it does not have money. We have been trying to tap some institutions, particularly the United Nations and other international agencies. We have no proposal to ask any individual to come and give us contributions, but we would be very happy if international institutions and institutions committed to democracy can give us assistance in this regard. FAME is a non-profit organisation and it does not intend to do anything other than work for the improvement of the electoral process in India and elsewhere. In fact, we have been sounded by international agencies for some help and we hope we will be able to provide a good example of good elections.

We would like to thank the authorities of India Habitat Centre who have been very generous in giving assistance in conducting this programme. We also thank the audience, who have been sitting through right from the morning and we are grateful to one and all.

Sir, I’d like to mention only one point before I close. You mentioned about the powers of the Election Commission. I thought I must just make a reference to it. If only the powers of the Election Commission were such, we would have disqualified any number of people for the violence that has taken place in the country. We do not have the powers; the only power we have is to disqualify a person who has not filed the expenditure statement. We do not have any other power. I shall be grateful if you can debate and discuss with your party members and other parties and find out if some of the suggestions made are acceptable or not. We have left the Election Commission; the tradition is being carried on by Mr. Naveen Chawla and his team. The Election Commission is always committed for good elections.

We must also thank Mr. Bhure Lal and others connected with this organization, who have voluntarily offered their services for conducting the proceedings. As I said, many of us are not in Delhi and Mr. Bhure Lal has been daily contributing to the organisation of this seminar. A special thanks to him.

General Jhingan is another individual who has been assisting us, not only in conducting this seminar but also in running the show in Delhi and thefore, merits a special thanks.

Ms. Manjira Khurana

I now call on Mr. Lyngdoh to present three mementos. We took the liberty of preparing a small memento for Mr. Moily, Mr. Chawla, Mr. Bhure Lal, which we hope would find a small place in their already filled mantelpiece; it will remind them of us.

Most of all, I have to thank the media for the coverage, their patience and for their attendance in a relatively dry seminar without any interesting fireworks. The media has been most supportive.

Mr. K J Rao

I now request Mr. Lyngdoh to present this memento to Ms. Manjira Khurana who has been there all along. She has taken the complete charge of the PR work and wonderfully taken care of it as well as the stage.

I would just like to end the session with a fervent appeal; all this is of no use if this remains confined to this room and to the handful of people who are here. We need to carry the torch and the message forward. I hope that the younger generation will in some way, be enthused by us, and will do a better job of running democracy in a manner which really democracy needs to be done, because clearly, we have not done a very good job of it. Yes, individuals have done great work, as have commissions and individual CECs, but we, as a people, have clearly left something to be desired. Let us make amends and pass the baton to the younger generation.